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Thinking twice about privacy

If you think text messages on your work-issued cell phone are private, think again.

A Californian police officer recently alleged his privacy rights had been violated when his employer searched text messages on his work pager. The police officer had repeatedly exceeded his monthly characters limit and the police department was concerned that the pager contract characters limit was too low. But the search revealed the police officer sent more personal than work-related messages and that many were of a sexual nature.

The U.S. Supreme Court said the search was reasonable because the police officer knew the department had a policy that reserved the right to monitor usage and that there was no expectation of privacy or confidentiality. As it turned out, the police officer had arranged to pay for the overage to avoid having his message usage raise a red flag.

There were two further factors as to why the search was reasonable:

•  The department was concerned that its pager contracts were not sufficient and that justified the initiation of the search

•  The search excluded text messages which were sent or received while the police officer was off duty.

In other words, the limited search was not excessively intrusive, and there was a reasonable basis for it.

In New Zealand, it is common for employers to provide work-issued communication devices such as cellphones and computers, including email accounts.

Employees should keep in mind any usage policies their employer has for work-related communication devices. For example, employer policies can include the right to:

•  Access emails sent and received on work computers

•  Monitor both time spent and sites visited on the internet

•  Review computer directories; and/or

•  Monitor cell phone usage.

However, even where an employer has a wide-reaching policy that gives it the ability to access, monitor and/or review employees' work-issued communication devices, unrestrained snooping is unlikely to be justifiable. Wide-reaching policies need to be justified by a legitimate business reason.

While employees can rest assured that they are entitled to privacy in relation to work-issued communication devices, they need to be aware that an employer's policies and/or justifications, in some cases, may take precendence. We think some communications are better left at home.

Onerous new obligations under Immigration Act

Employers will need to take "reasonable precautions and exercise due diligence" in checking whether a person is entitled to work in New Zealand, under the new Immigration Act 2009 effective at the end of November, 2010.

An employer will be committing an offence where it:

• Allows or continues to allow any person to work (in that employer's service), knowing that the person is not entitled to do that work and will be liable to a fine of up to $50,000; or

• Allows a person who is not entitled to work (in that employer's service) to do that work and will be liable to a fine of up to $10,000.

It will not be enough for an employer to show it did not know the person was not entitled to do the work. Further, holding an IR330 tax declaration form will no longer be a reasonable excuse for employing a person who is not entitled to work in New Zealand or for that employer.

The Department of Labour has recommended that employers have a robust system in place for checking a potential employee's immigration status and retaining copies of the documentation that was checked.

Immigration New Zealand has launched an online system called VisaView to help employers check whether a person is entitled to work in New Zealand.  VisaView is free to use and aims to provide an immediate response to queries about the immigration status of existing or prospective employees.