Bourke v. Nissan Motor Co.

Last updated
Bourke v. Nissan Motor Co.
Court California Court of Appeal, Second Appellate District, Division 5
Full case nameBonita P. Bourke et al., v. Nissan Motor Corporation in U.S.A.
Decided26 July 1993
Case history
Prior actionsBourke v. Nissan Motor Co., No. YC-003979 (Cal. Super. Ct., L.A. Cty. 1992)
Subsequent actionnone
Court membership
Judge sittingDouglas A. McKee
Case opinions
The court ruled that plaintiffs had no reasonable expectation of privacy, and therefore employer had right to monitor employee's E-mail and to terminate employees for using company E-mail system for personal use.

Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993), was a California court case in which the Second Appellate District Court of the California Courts of Appeal upheld the original decision of the trial court in favor of the defendant, Nissan Motor Corporation, against the charges of the plaintiffs, who alleged wrongful termination, invasion of privacy, and violation of their constitutional right to privacy, under the California constitution, in connection with Nissan's retrieval, printing, and reading of E-mail messages authored by plaintiffs. [1]

Contents

The court ruled that the employer had a right to monitor an employee's E-mail and to terminate employees for sending E-mail of a personal, sexual nature. California's Wiretap and privacy laws did not protect employees from employer monitoring. [2] The Court of Appeal designated this opinion "Not to be published" and it was not reported in the typical opinion reporters.

Case Background

Bonita Bourke and Rhonda Hall were hired by Nissan in June 1989, as Information Systems Specialists at an Infiniti car dealership, serving as customer service representatives for users of the internal computer system.

In June 1990, a co-worker of plaintiffs, Lori Eaton, during a demonstration of the use of E-mail at a training session, randomly selected a message sent by Bourke to an employee of the dealership. The E-mail contained non-business-related content of a highly personal, sexual nature.

This incident was reported to management and many other messages containing personal content involving Bourke and her colleague Hall were later discovered. Following this, written warnings were issued to plaintiffs for violating the company policy prohibiting the use of the company computer system for personal purposes.

During the annual performance review in October 1990, both plaintiffs had received rather low performance ratings (Bourke was rated “needs improvement,” and Hall was rated “unsatisfactory,” second lowest and lowest of six performance level, respectively).

On December 28, 1990, plaintiffs filed grievances with Nissan's human resources department, complaining that the company had invaded their privacy by retrieving and reading their E-mail messages. A few days later, on January 2, 1991, Bourke was given a final warning notice requiring her to improve her performance, while Hall's employment was terminated.

Based upon Nissan's actions in reviewing their E-mail messages as described above, plaintiffs sued Nissan for common law invasion of privacy, violation of their constitutional right to privacy, and violation of California's criminal wiretapping and eavesdropping statutes. They also brought a cause of action for wrongful discharge in violation of public policy (termination in retaliation for the filing of complaints objecting to Nissan's invasion of their privacy). [1]

Opinion of the Court

I. Common Law Invasion of Privacy and Violation of Constitutional Right to Privacy

Regarding the application of common law vs. constitutional right, the court found that the constitutional right to privacy (stated in California Constitution, Article 1, section 1, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy") [3] is broader than, and encompasses, the common law tort of invasion of privacy (see Porten v. University of San Francisco, 64 Cal. App. 3d 825, 829 (Cal. Ct. App. 1976)), thus analysis and discussion was restricted to the constitutional claim.

The critical issues in judging of the violation of an individual's constitutional right to privacy depends first on a determination whether that individual had a personal objectively reasonable expectation of privacy which was infringed (see Alarcon v. Murphy, 201 Cal.App.3d 1, 5 (Cal. Ct. App. 1988) and People ex rel. Franchise Tax Bd. v. Superior Court, 164 Cal.App.3d 526 (Cal. Ct. App. 1985)). [4] The court found that the employees had no reasonable expectation of privacy, citing the following undisputed facts: (1) Plaintiffs each signed a Computer User Registration Form, which states that "[I]t is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business." (2) The two had been aware for months that E-mail messages were, from time to time, read by individuals other than the intended recipient. (3) In June 1990, a full six months before Bourke's termination, fellow employee, Lori Eaton, had contacted Bourke to complain about the personal, sexual nature of Bourke's E-mail message which Eaton had retrieved for demonstration purposes during a training session at an Infiniti dealership. [1]

Moreover, the fact that plaintiffs were given passwords to access the system and told to safeguard them did not move the court to find their privacy expectations reasonable (see Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Penn. 1996) [the employer's interest in preventing inappropriate communications over its E-Mail system outweighed any privacy interest by those employees who transmitted such communications] [4] ).

In the absence of a reasonable expectation of privacy, there can be no violation of the right to privacy (see Alarcon v. Murphy, 201 Cal.App.3d 1, 5 (Cal. Ct. App. 1998) [5] ) Therefore, the Court of Appeal held that plaintiffs' causes of actions for common law invasion of privacy and violation of the California constitutional right to privacy were properly dismissed on summary judgment.

II. Violation of Penal Code Section 631

Penal Code section 631prohibits a person from “intentionally tap[ping], or mak[ing] any unauthorized connection . . . with any telegraph or telephone wire, line, cable, or instrument, .. . or . . . read[ing], or attempt[ing] to read, or to learn the contents of any message, report, or communication while the same is in transit or passing over any wire, line or cable . . . .” [6]

The court found that the statute does not apply to the facts of this case, since plaintiffs cited no authority to support their contention that section 631 covers the retrieval, printing and reading of E-mail messages which is not authorized by the author of the message. This decision is based on the fact that (1) There is no allegation that Nissan "tapped" into its own telephone lines, and indeed there would be no need to do so since, being the system operator, Nissan had access to the network without resort to a telephone line tap. (2) Likewise, as the owner and operator of the system, Nissan's connection to the telephone lines or cable which connected the system would necessarily be authorized. And (3) Nissan did not access the messages during transmission. Rather, the messages were retrieved from an electronic storage device and printed so that they could be read. Thus the Court found that Nissan's actions in retrieving, printing and reading plaintiffs' E-mail messages simply were not included within the actions proscribed by California Penal Code section 631. [1]

III. Violation of Penal Code Section 632

The court found that section 632 (which prohibits the eavesdropping or recording of a "confidential communication by means of any electronic amplifying or recording device" [7] ), does not apply in this case. The reason behind this decision is that: (1) the plain words of the statute simply do not permit a finding that Nissan's conduct violated the law, as no amplifying or recording device was used to retrieve and read plaintiffs' E-mail messages. (2) section 632 proscribes only “the interception of communications by the use of equipment which is not connected to any transmission line” (People v. Ratekin, 212 Cal.App.3d 1165, 1168 (Cal. Ct. App. 1989) [8] ), a circumstance not present in this case.

IV. Wrongful Discharge in Violation of Public Policy

In the absence of an agreement to the contrary, an employee may be terminated at-will, that is, for any reason or for no reason at all (see Foley v. Interactive Data Corp., 47 Cal.3d 654,665 (Cal. 1988) [9] ). An employer may not, however, fire an employee for a reason which violates public policy (Ibid,; see also Tameny v. Atlantic Richfield, 27 Cal.3d 167, 178 (Cal. 1980); [10] Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 188 (Cal. Ct. App. 1959) [11] ).

The court argued that a claim for wrongful termination in violation of public policy necessarily requires a violation of public policy; however, as concluded in section I., Nissan's actions in reviewing plaintiffs' E-mail messages did not violate their constitutional right to privacy. Therefore, the Court held that plaintiffs had failed to state a claim for wrongful termination in violation of public policy.

Summary of Cited Court Cases

Alarcon v. Murphy, 201 Cal.App.3d 1 (Cal. Ct. App. 1988): the court held that there is no reasonable expectation of privacy with respect to an individual's criminal record because a criminal record is public information. [5]

Smyth v. Pillsbury , 914 F. Supp. 97 (E.D. Pa., 1996): the court held that there is no reasonable expectation of privacy with respect to e-mails although the employer assured its employees that e-mails will be treated as confidential and would not be used as grounds for termination. [5] [12]

Foley v. Interactive Data Corp., 47 Cal.3d 654, 665 (Cal. 1988): in the absence of an agreement to the contrary, an employee maybe terminated at-will, that is, for any reason or for no reason at all. [9]

Tameny v. Atlantic Richfield, 27 Cal.3d 167, 178 (Cal. 1980) [employee terminated for refusing to engage in price-fixing] [10] and Petermann v. International Brotherhood of Teamsters 174 Cal.App.2d 184, 188 (1959)[employee terminated for refusing to commit perjury]: [11] an employer's general right to terminate an "at-will" employee is 'subject to limits imposed by public policy, since otherwise the threat of discharge could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public weal.' However, an exception to the general at-will employment presumption is made and a tortious wrongful discharge claim will lie where an employer's termination of an employee violates a fundamental public policy, or in other words, where "he or she is discharged for performing an act that public policy would encourage, or for refusing to do something that public policy would condemn. [13]

See also

Related Research Articles

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

Malicious prosecution is a common law intentional tort. Like the tort of abuse of process, its elements include (1) intentionally instituting and pursuing a legal action that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution. In some jurisdictions, the term "malicious prosecution" denotes the wrongful initiation of criminal proceedings, while the term "malicious use of process" denotes the wrongful initiation of civil proceedings.

In employment law, constructive dismissal, also called disguised dismissal, constructive discharge or constructive termination, occurs when an employee resigns due to the employer creating a hostile work environment. This often serves as a tactic to avoid payment of statutory severance pay and benefits. In essence, although the employee resigns, the resignation is not truly voluntary but rather a response to intolerable working conditions imposed by the employer. These conditions can include unreasonable work demands, harassment, or significant changes to the employment terms without the employee’s consent.

In United States labor law, at-will employment is an employer's ability to dismiss an employee for any reason, and without warning, as long as the reason is not illegal. When an employee is acknowledged as being hired "at will", courts deny the employee any claim for loss resulting from the dismissal. The rule is justified by its proponents on the basis that an employee may be similarly entitled to leave their job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

Email privacy is a broad topic dealing with issues of unauthorized access to, and inspection of, electronic mail, or unauthorized tracking when a user reads an email. This unauthorized access can happen while an email is in transit, as well as when it is stored on email servers or on a user's computer, or when the user reads the message. In countries with a constitutional guarantee of the secrecy of correspondence, whether email can be equated with letters—therefore having legal protection from all forms of eavesdropping—is disputed because of the very nature of email.

A severance package is pay and benefits that employees may be entitled to receive when they leave employment at a company unwillfully. In addition to their remaining regular pay, it may include some of the following:

Workplace privacy is related with various ways of accessing, controlling, and monitoring employees' information in a working environment. Employees typically must relinquish some of their privacy while in the workplace, but how much they must do can be a contentious issue. The debate rages on as to whether it is moral, ethical and legal for employers to monitor the actions of their employees. Employers believe that monitoring is necessary both to discourage illicit activity and to limit liability. With this problem of monitoring employees, many are experiencing a negative effect on emotional and physical stress including fatigue, lowered employee morale and lack of motivation within the workplace. Employers might choose to monitor employee activities using surveillance cameras, or may wish to record employees activities while using company-owned computers or telephones. Courts are finding that disputes between workplace privacy and freedom are being complicated with the advancement of technology as traditional rules that govern areas of privacy law are debatable and becoming less important.

Employee monitoring is the surveillance of workers' activity. Organizations engage in employee monitoring for different reasons such as to track performance, to avoid legal liability, to protect trade secrets, and to address other security concerns. This practice may impact employee satisfaction due to its impact on the employee's privacy. Among organizations, the extent and methods of employee monitoring differ.

<i>People v. Pointer</i>

People v. Pointer, 151 Cal.App.3d 1128, 199 Cal. Rptr. 357 (1984), is a criminal law case from the California Court of Appeal, First District, is significant because the trial judge included in his sentencing a prohibition on the defendant becoming pregnant during her period of probation. The appellate court held that such a prohibition was outside the bounds of a judge's sentencing authority. The case was remanded for resentencing to undo the overly broad prohibition against conception.

State v. Reid, 194 N.J. 386, 954 A.2d 503, was a criminal court case in which the New Jersey Supreme Court ruled that Internet service provider (ISP) subscribers have a reasonable expectation of privacy in the identifying information they provide to ISPs. This case has helped place New Jersey at the forefront of the states committed to providing their residents with broader privacy protections than those available under federal law.

Ontario v. Quon, 560 U.S. 746 (2010), is a United States Supreme Court case concerning the extent to which the right to privacy applies to electronic communications in a government workplace. It was an appeal by the city of Ontario, California, from a Ninth Circuit decision holding that it had violated the Fourth Amendment rights of two of its police officers when it disciplined them following an audit of pager text messages that discovered many of those messages were personal in nature, some sexually explicit. The Court unanimously held that the audit was work-related and thus did not violate the Fourth Amendment's protections against unreasonable search and seizure.

O'Connor v. Ortega, 480 U.S. 709 (1987), is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal.

<i>Stengart v. Loving Care Agency, Inc.</i>

Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (2010) was a New Jersey Supreme Court case that provided guidance to employees as to what extent they may expect privacy and confidentiality in personal e-mails composed on company-owned computers. Through its decision, the court ruled on two key issues which concluded that there should be a "reasonable" expectation of privacy in personal e-mails on company computers, and that attorney–client communication privileges and privacy should not be violated. On March 30, 2010, Chief Justice Stuart Rabner and the New Jersey Supreme Court affirmed the appellate court's decision by overturning the previous ruling made by the trial court. The trial court previously determined that a company-created policy provided sufficient warning to employees that all communications and activities performed on company-owned computers were subject to review by the employer and that there should be no expectation of privacy because of such policies.

NASA v. Nelson, 562 U.S. 134 (2011), is a decision by the Supreme Court of the United States holding that NASA's background checks of contract employees did not violate any constitutional privacy right.

Michael A. Smyth v. The Pillsbury Company, 914 F. Supp. 97 was decided on January 18, 1996, in the United States District Court for the Eastern District of Pennsylvania. Michael A. Smyth was a regional operations manager at the Pillsbury Company. Smyth had a company email account that he was able to access from work and home. Pillsbury, on multiple occasions, told its employees that all email communications were private, confidential, and that there was no danger of the messages being intercepted and used as grounds for discipline or termination.

<i>Norris v. Moskin Stores, Inc.</i>

Norris v. Moskin Stores, Inc., 132 So. 2d 321, is a decision by the Alabama Supreme Court, influential in the development of privacy law and state debt collection common law.

In law, wrongful dismissal, also called wrongful termination or wrongful discharge, is a situation in which an employee's contract of employment has been terminated by the employer, where the termination breaches one or more terms of the contract of employment, or a statute provision or rule in employment law. Laws governing wrongful dismissal vary according to the terms of the employment contract, as well as under the laws and public policies of the jurisdiction.

Intrusion on seclusion is one of the four privacy torts created under U.S. common law. Intrusion on seclusion is commonly thought to be the bread-and-butter claim for an "invasion of privacy." Seclusion is defined as the state of being private and away from people.

<span class="mw-page-title-main">Private Attorneys General Act</span>

The Private Attorneys General Act of 2004 (PAGA) is a California statute that authorizes aggrieved employees to bring actions for civil penalties on behalf of themselves, other employees, and the State of California against their employers for California Labor Code violations. PAGA's purpose is not to recover damages or receive restitution, but rather to allow citizens to act as private attorneys general and enforce the Labor Code. Because PAGA suits are fundamentally law enforcement actions, aggrieved employees must notify the Labor and Workforce Development Agency (LWDA)—the state agency that enforces California labor laws—of any alleged Labor Code violations. An aggrieved employee can only file a PAGA lawsuit after the LWDA elects not to pursue its own action against the employer.

References

  1. 1 2 3 4 Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993).
  2. ↑ Perkins Coie LLP, Short Summary of Court's Decision [ permanent dead link ], Digestible Law (July 26, 1993).
  3. ↑ California Constitution Archived 2015-05-06 at the Wayback Machine
  4. 1 2 Mary E. Pivec and Susan Brinkerhoff, E-Mail in the Workplace: Limitations on Privacy Archived February 28, 2009, at the Wayback Machine ABA Human Rights Magazine, Vol. 26, No. 1 (Winter 1999).
  5. 1 2 3 Rania V. Sedhom, A Workplace Privacy Odyssey:Office Manuals Are Growing In Epic Proportions Archived September 19, 2010, at the Wayback Machine , Privacy & Data Security Law Journal (May 2008).
  6. ↑ California Penal Code Section 631
  7. ↑ California Penal Code Section 632
  8. ↑ Steven Winters, The New Privacy Interest: Electronic Mail in the Workplace Archived May 26, 2011, at the Wayback Machine , 8 High Tech. L.J. 197 (1993).
  9. 1 2 California Civil Jury Instructions
  10. 1 2 Tameny v. Atlantic Richfield, 27 Cal.3d 167 [ permanent dead link ], (Cal. 1980).
  11. 1 2 Elizabeth H. Murphy, Firing at Will Archived July 27, 2011, at the Wayback Machine LACBA (1999).
  12. ↑ Smyth v. Pillsbury, 914 F. Supp. 97 (E.D. Pa. 1996).
  13. ↑ California Employment Law - Wrongful Termination CA-Employment-Lawyers.Com.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.