Tag: forensic search

Eleventh Circuit Finds Forensic Search of Work Computer May Be Retaliation Many employers have begun using increasingly advanced forensic tools to survey workers' use of company computers. Such searches have the ability to reveal employee violations of company policies, harassment, discrimination, and information disclosures. An unpublished opinion from the Court of Appeals for the Eleventh Circuit has cautioned employers on the danger of using these tools without first establishing a clear business-related reason for performing such searches. In this case, the plaintiff worked as an administrative assistant for a police department and filed an internal complaint against the Chief of Police, alleging that she was discriminated against due to her sex. The complaint alleged that she was denied the use of paid leave to work at a second job despite the department having previously allowed multiple male employees to do the same. After the Chief of Police was made aware of this complaint, he ordered a forensics search of the plaintiff's computer use which resulted in the discovery of nude photographs which were inadvertently downloaded from the plaintiff's cell phone, as well as evidence that the plaintiff had performed work for her second job during work hours. As a result, the plaintiff's employment was terminated, and the plaintiff filed a lawsuit alleging retaliation in response to her earlier complaint. Initially, the district court chose to dismiss the claim of retaliation due to the plaintiff's lack of knowledge that the forensic search was being performed. Thus, in the district court's opinion, the search did not amount to a materially adverse employment action. However, upon appeal, the Eleventh Circuit found that the employee does not need to be aware of the retaliation for it to be an actionable adverse action. Further, the employee never would have been dismissed if the search had not been conducted, and if they had known that this would have been the result of filing their complaint, they would have been strongly dissuaded from doing so. The court also found that the chief was incapable of explaining a business-related reason for conducting the review outside of retaliation. He had failed to listen to the HR department in performing the search as well as the city's policies for progressive discipline. As a result, the court found that there was a material issue present for a jury to consider. Employer Takeaways It can be extremely tempting to use the many advanced forensic tools on the market for examining employee computer use to catch employees suspected of misconduct. However, before performing any of these searches, it is important to ensure that there is a legitimate business-related reason that can be clearly explained for performing the search. When in doubt, it is always wise to consult legal counsel before performing such a search. Stay updated on all the new rules of compliance with Pre-employs free news resources on employment eligibility. Contact a Sales Rep today for more information. STAY COMPLIANT WITH YOUR BACKGROUND CHECKS

Tag: forensic search

Eleventh Circuit Finds Forensic Search of Work Computer May Be Retaliation

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