Extraordinary Employee Misconduct: Saving Nude Pictures to Work Computer!

By Fiona W. Ong - Shawe Rosenthal LLP

February 13, 2019

In my occasional series on the crazy things that employees do, here’s one that, in reality, is probably not all that uncommon. Many people use their personal cell phones for work. And as a matter of habit, they may plug their cell phones into their work computer – maybe to sync it or charge it. But what they aren’t thinking about is that the work computer backs up the content on the phone. All. Of. It. (Unless the employee is technically savvy enough to back up only portions of it. Let’s be frank – most people aren’t that savvy.)

And that is what happened in the case of Smith v. City of Pelham. Suspecting that the employee was performing work for another employer and engaging in personal social media activity while on the clock, her supervisor ordered a review of her work computer. They found backup copies of her personal cell phone on the computer, which included nude photos of the employee and others! The employee was terminated for violating the internet policy and conduct unbecoming an employee. She then sued, claiming among other things that her supervisor and the city had invaded her privacy. (Yes, I suppose nude photos on a personal cell phone were intended to be private!)

The court, however, threw out her invasion of privacy claim. It agreed with the employer that the employee had no reasonable expectation of privacy, since the city had implemented a computer policy that gave the city the right to monitor usage of its computers. Employees also consented to the search of their work computers under the policy. The employee argued that she had not consented to the search of her personal cell phone, and did not realize that connecting her phone to her work computer would result in personal (nude) photos being saved to the computer. The court, however, dismissed her argument, noting that the city, as it was entitled to do, had accessed only her work computer – which happened to have the backup copies of her cell phone, including her (nude) photos.

There are multiple lessons here. For employers, it is wise to have a computer policy that specifically notifies employees that the employer will monitor computer use, and that employees have no expectation of privacy in their use of the employer’s computer equipment and systems! And as the city did, the policy could include a consent to search the computer. For employees, well, don’t connect your personal cell phones to your work computer – particularly if you have nude photos on your phone!  After all, your exposure (legal and otherwise) could be quite broad!