Labor & Employment Law

Searching an employer?s computer for evidence of employee misconduct

Searching an employer?s computer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op 28192, Decided on May 22, 2008, Onondaga County Ct, Fahey, J

David Wilkinson and Michael Casey were each charged with the crimes of Defrauding the Government in violation of Section 195.20 of the Penal Law; and two counts of Official Misconduct in violation of section 195.00(1) and 195.00(2) of the Penal Law for allegedly filing false time sheets and obtaining wages that they were not entitled to in their capacity as officers with the Village of North Syracuse Police Department and the Village of Marcellus Police Department between the dates of January 1, 2000 and December 31, 2006.

In this action Wilkinson and Casey asked the court to suppress evidence obtained by District Attorney?s ?White Collar Crime Unit? as the result of a search of their computers at the Village of North Syracuse Police Department on the grounds that they did not consent to the search and that the Search Warrant issued by the Onondaga County Court was issued without sufficient probable cause. They also argued that the fruits of the search of their computers must be suppressed because they had an expectation of privacy in their computers, that the investigators from the District Attorneys Office did not have the consent of either of them to search the computers and those of the North Syracuse Police Department and that the search warrant obtained after the viewing of the document on the Casey computer was the "fruit of the poisonous tree."

Addressing the issue of ?consent,? the Court said that both Wilkinson and Casey ?have demonstrated a legitimate and reasonable expectation of privacy in the computers searched.? Finding that the searches were conducted without such consent and that the seizures of the computers resulted solely from the warrantless search of the Casey computer prior to the issuance of a search warrant, the motions made by both Wilkinson and Casey to suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that David Wilkinson / Michael Casey was a criminal proceeding and the rules of evidence are stringent and controlling in such litigation. Such is not the case in administrative disciplinary actions where the hearing officer or arbitrator is not bound by the formal rules of evidence.

Recent examples of the approval of the use of computer, or computer related, evidence to find an employee guilty of administrative disciplinary charges include:

Matter of Leo Gustafson v Town of N. Castle, N. Y, 45 A.D.3d 766, Appellate Division, Second Department - Leo Gustafson, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. Gustafson was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town?s computer reporting the vehicle?s location and movements. Based on this information, the Town charged Gustafson with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that Gustafson was guilty of falsifying town records.

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U), March 7, 2008, Supreme Court, New York County, Docket Number: 0110481/2007 - Mircea Ghita challenged an arbitrator?s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected Ghita?s claim that the arbitrator exceeded his authority under Education Law § 3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 - Unemployment insurance claimant John K. Perry challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of Perry's alleged misconduct: his misuse of his employer's computer equipment. Perry, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.