The company reserves the right to monitor all e-mail on the company e-mail system —In other words, as an employee you should assume no right of privacy one-mail transmitted on the company system. In addition,.any messages sent or received, for business or personal reasons, may be disclosed to law enforcement officials or third parties without your prior consent.
Sporer used a work-issued computer to perform his work at UAL. As far back as at least January 2006, a Waming Notice appeals on all UAL computers when they are turned on. The Warning Notice informs employees that the computer system is a private computer system and that it is protected and monitored by a security system. Employees must click “OK” on the screen to clear the Waming Notice and proceed with use of the computer.
On August 10,2007, Sporer received an email entitled “Amazing oral talent!!!!!!!!!!” on his work email account from his friend. Harry Clancy (“Clancy”). Sporer sent this email from his work computer, over UAL’s server, to his personal email account The email contained a pornographic movie of a woman orally copulating a man in various acrobatic positions.
A few minutes after transmitting the email to his personal email account, Sporer emailed Clancy: “Thank you for the spirituaMift However, I need you to use my home E-mail address…. Apparently UnitedAir Lines, Inc. has a strict computer security policy and these babies will get me fired.”
During a routine audit, UAL’s Information Security department came across the pornographic email Sporer sent to his personal email account The Information Security department forwarded the email to the Manager of Labor and Employee Relations, Kellee Allajh. Ms. Allain forwarded the email to Kathleen Tetrev.
In October 2002, Information Security had caught Sporer sending another inappropriate email from his work”account The email, entitled “Skeleton Fun,” contained a video of skeleton cartoon figures engaging in sexual intercourse. Sporer was counseled that the email he sent to his personal account from work was inappropriate. Sporer was told that UAL’s security system had found this email and that the email was inappropriate.
During UAL’s investigation of Sporer’s transmission of the email in August 2007, Sporer admitted that: (1) this was his second violation of UAL’s email policy; (2) he was aware of UAL’s Zero Tolerance Policy; (3) he had signed UAL’s computer security agreement, and (4) the title of the email “Amazing oral talent!!!!!!!!!!” was suggestive. Sporer also admitted that, based on the title of the email and who had sent it to him, that the email might not have been suitable for work.
UAL terminated Sporer for transmitting this pornographic email. Sporer’s transmission of this email violated UAL’s Zero Tolerance Policy on Harassment and Discrimination.
The presumption of at-will employment “may be overcome by evidence of contrary intent” In the absence of an express contract provision, the following factors may be used to determine whether there is an implied contract that an employee may only be terminated for cause: “the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” Sporer concedes that he signed an employment agreement in 1987 that contains an at-will provision. Nevertheless, Sporer contends that several changes in his status with UAL redefined his employment relationship. Sporer developed an understanding that no one at UAL was terminated without good cause. Sporer also relies on unidentified UAL policy governing the process by which investigations and terminations occur and that he worked for UAL over 20 years.
As noted above, Sporer does not dispute that he signed an employment agreement with an at-will provision. The existence of a progressive discipline policy is insufficient to rebut the presumption of at-will employment Working for an employer for many years is similarly insufficient to rebut the presumption. Moreover, Sporer has not submitted any evidence to support his subjective belief that he could only be terminated for cause. Therefore, the Court finds that Sporer has not submitted sufficient evidence to establish any agreement not to terminate him without good cause. Accordingly, the Court grants UAL’s motion for summary judgment on Sporer’s breach of contract claim.
Sporer contends that his termination was wrongful because it was in violation of his right to privacy which prohibits the interception and disclosure of wire, oral, or electronic communications. To establish an invasion of privacy under California law, a plaintiff must demonstrate: “(1) a legally protected privacy interest; (2) a reasonable expectation pi privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.”
Here, UAL had a policy of monitoring its employees’ computer use, warned employees that they had no expectation of privacy on e-mail transmitted on the company system, and provided its employees with a daily opportunity to consent to such monitoring. Sporer fails to submit any evidence to the contrary. In light of such circumstances, the Court finds that Sporer had no reasonable expectation of privacy in the use of his work email….
For the foregoing reasons, the Court GRANTS UAL’s motion for summary judgment
Case Commentary
The Northern District Court of California decided that Sporer had no expectation of privacy in the use of e-mails in the workplace.
Case Questions
1. Are you in agreement with the court’s decision?
2 What if an employee accessed a pomographic e-mail on his personal e-mail
account through his workplace computer?
3. What if an employee was observed accessing a pornographic e-mail on a
smartphone at work?