Dirty Pics! Resign or Face Wrath?
August 15, 2011 7:43 PM   Subscribe

Asking for a close friend. Said close friend accidentally left a USB drive in a work computer today that contained less than appropriate photo's of him on it. A co-worker found the drive and the photo's this evening. His boss is now giving him the option to resign this evening or face a full HR investigation in the morning. He recognizes this was a huge mistake on his part, but wonders what to do? Resign tonight, or face the wrath of HR in the morning?
posted by rtodd to Law & Government (69 answers total) 26 users marked this as a favorite
Does this break company guidelines? Who did the USB belong to? Was he doing anything criminal or just smutty? Whose computer was it? Did the finder have to go looking around inside the USB or were the pics easily found? Where is your friend?
posted by taff at 7:49 PM on August 15, 2011 [2 favorites]

Has your friend had other disciplinary actions previously or is this his first "transgression"?
posted by otherwordlyglow at 7:51 PM on August 15, 2011 [1 favorite]

Depends a lot on where your friend works. In the current job market, being forced to resign is a serious kick in the teeth. I'd go for the "full HR investigation" in the morning and fight like hell.

But a civil servant in California is in a very different position from a private-sector employee in Alabama, so it's entirely possible that this may not be the 'right' answer.
posted by Kadin2048 at 7:55 PM on August 15, 2011 [2 favorites]

Ok. Good to see the above questions. I, too, was confused by how/why this is a fireable offense?

Please clarify.

Also, he should consult an attorney (several-phone consults will do) before making any decisions.

Does he have a contract? He needs it handy when he talks to the lawyers.
posted by jbenben at 7:56 PM on August 15, 2011 [1 favorite]

HR - bring it on. 'Yes, I inadvertently allowed personal material to be accessed through my employers' IT facilities. Explain to me again why this is a firing offence, rather than a counselling offence?'

(Unless by 'his boss' you mean 'a manager who sits over, and can direct, HR', in which case, jump.)
posted by obiwanwasabi at 7:57 PM on August 15, 2011 [3 favorites]

Response by poster: OP here...the company is in Texas. It's his USB. Nothing illegal, just 'smutty', and yes, it's his first transgression. The person who found the USB actually had to dig through various folders to find the pictures.
posted by rtodd at 7:57 PM on August 15, 2011 [2 favorites]

So...your friend used his employer's computer to look at naked picture of himself?

I don't see how this would turn out good for your friend. I'd just resign.
posted by dfriedman at 8:02 PM on August 15, 2011 [1 favorite]

If your friend ever signed a piece of paper that said he will use the company-supplied equipment for work-related things only, or if he must click a similar statement before he enters his password when he logs in, then really he might as well resign today.

I think he will probably lose his job either way, and it comes down to how he wants to leave -- resigning may mean he isn't eligible for unemployment. Being fired may mean that too, since it's "for cause."

Although, it might depend on the photos -- I don't expect you to share the details with us, but if it's a picture of his penis or having sex with someone, I can't image that would fly. If it's him dancing shirtless and drunk on a table at a local bar, it's probably going to slide. Also probably depends on the person who found the files -- do they feel they have been sexually harassed (not saying they were, just that that might be the core of their argument when they took the files to a manager)?
posted by Houstonian at 8:03 PM on August 15, 2011

It doesn't sound like OP's friend was ogling himself on work equipment, but more like he left his own drive at work that happened to contain embarrassing photos of himself in addition to other things (they were buried several folders deep). I don't see how it's different from leaving a personal laptop or purse at work and having a coworker find something embarrassing after rooting through it.
posted by Rhaomi at 8:07 PM on August 15, 2011 [46 favorites]

At my place of employment our electronic communications policy gives a very loose definition of inappropriate use company equipment and allows for termination of employment for even first violations. We terminated an employee for accidentally leaving smutty pictures of himself on a shared work computer. I wouldn't be surprised if your friend's workplace had a similar policy that he is in violation of but he should definitely check it out.

Personally though I would cut my losses and resign, it wouldn't be a fun fight.
posted by ghharr at 8:08 PM on August 15, 2011

I'd tell your friend to lawyer up.
I don't understand why someone would be digging through a personal thumbdrive of an employee. Particularly if it was just in some folder buried in the file drive. If it wasn't work equipment there really should be a question if their privacy was violated.
Even if tomorrow they are let, go he should seek counsel.
/ianal just a dude on the net but I would fight to the teeth if someone went through my personal thumb drive.
posted by handbanana at 8:11 PM on August 15, 2011 [34 favorites]

I'd go to the hearing, apologise genuinely and abjectly, and, if they still wanted to be so petty, make them fire me. A silly little slip like this shouldn't ruin someone's job and a manager worth his salt would have given the USB back to him and hold him to keep it in his pants next time. Maybe someone in HR will see sense in the morning.
posted by joannemullen at 8:14 PM on August 15, 2011 [10 favorites]

If your friend resigns, he's simply out a job in a very tough market and HR, his boss and the snoopy co-worker all get off easy.

If your friend shows up at work tomorrow and faces the music, everybody else will have to talk about some very embarrassing stuff that they would probably rather just pass over.

You friend was confident enough to pose for these pics, so he can certainly hold his head up and take whatever shaming they want to dish out. I suspect it will simply be a letter in his file and some snickering.
posted by Scram at 8:16 PM on August 15, 2011 [5 favorites]

What a horrible situation.

I think the problem is his asshole boss, who seems to want him gone for the "crime" of having someone go through his personal property.

If I was him I would go talk to HR, if they really want him gone he may be able to work something out where he is eligible for unemployment. Or he may get off with a warning and at least have time to look for something new.
posted by drjimmy11 at 8:16 PM on August 15, 2011

What joannemullen said. Though, under the circumstances he's going to have to consider that with the HR interaction and the embarrassment that the rumor mill will generate, he might as well consider any reprieve he gets as time to do a hasty job search.
posted by bendy at 8:17 PM on August 15, 2011 [1 favorite]

I'd fight this, especially since you say the co-worker was deliberately rummaging through the USB. If one of my co-workers left her purse in the office, and I went digging around in it and found a dildo or some such, I wouldn't expect the co-worker to be the one getting in trouble.
posted by Gator at 8:18 PM on August 15, 2011 [37 favorites]

Oh, hell no. You're going to dig through my personal property and then try to fire me for what you find there? I would not resign but fight this tooth and nail.
posted by unannihilated at 8:18 PM on August 15, 2011 [8 favorites]

Personally, I would rather be ashamed and employed, than proud and jobless. And many places will give warnings rather than go through the pain of a firing.
posted by Forktine at 8:19 PM on August 15, 2011 [5 favorites]

I can't see why your friend's boss would ask him to resign unless it would make things a lot easier on said boss. Namely, that the boss now feels awkward and/or isn't sure it's a fireable offense. Seeing as how it was an accident and the pictures weren't easily accessible, I'd say fight it. Someone else rummaged through his personal property. Unless the company can prove that business computers were used to edit/take/share/view the smutty pictures, I find it hard to argue with the dildo-in-purse analogy.
posted by supercres at 8:23 PM on August 15, 2011 [3 favorites]

Did he have a good reason to have that drive hooked up to the computer in the first place? Was he using it for work purposes and it just happened to have some rather personal things on it? I think it matters what he was using the drive for. All that said, I definitely think he shouldn't just automatically resign over this. It seems like there must be more to the story if the reaction was that severe.
posted by wondermouse at 8:26 PM on August 15, 2011 [2 favorites]

I'd fight it on grounds your personal privacy was violated. If they suspected I dunno corporate espionage or he worked somewhere with access to "Top Secret" files then maybe they might have a case. Even then if they didn't find anything illegal and can't prove you looked at it on a work computer to me it would be like someone going through your phone or your wallet/purse and finding personal pictures of you and you getting fired, it really is no different. Assuming of course no company policies where violated and the files weren't on a work computer.
posted by wwax at 8:27 PM on August 15, 2011

If the USB stick, which is your friend's property, was just left on the desk then it should be the coworker getting the HR investigation. But because it was stuck in the machine, that makes it trickier. But then you say that the pics weren't that bad, comparatively. So...I would go the HR tribunal route.
posted by tumid dahlia at 8:28 PM on August 15, 2011 [1 favorite]

Could he take a day off tomorrow to consult with an attorney or two? That seems like the smartest move.
posted by amtho at 8:29 PM on August 15, 2011 [1 favorite]

Look at it this way - if he had left copies of such photos inside a closed backpack sitting on the desk and someone found them, would he be in trouble? I very much doubt it.

Assuming that the USB drive was personally owned, not company property, the only person that has done anything fire-able is the person who searched through someone's private property. Still not a great idea to bring material like that to work anyway (much less leave it where others could access it easily), but hardly a sacking offence.

In the spirit of 'attack is the best form of defence', maybe he should threaten to lodge a complaint against the co-worker who violated his privacy unless the whole thing is just allowed to quietly go away? I don't know the law where you are at all, but it may be that an offence has been committed that your friend can overlook in the right circumstances.
posted by dg at 8:30 PM on August 15, 2011 [4 favorites]

Yes, I think that wondermouse has it right on.

If he was using the USB for work related things, and never opened the "smutty images" on the work computers, then he was likely not in violation at work.

I don't think it's against any violation to have, and carry nude or sexual images of yourself. Especially if you are not showing them, or intending to show them to others.

I think the fact that the files were buried several folders deep is relevant.
Furthermore if he was in fact doing work related things with the USB, I'd say he has a solid case.

I'd vote for lawyer up 100%, and if I were him, I'd immediately start claiming that my privacy had been violated. It turns the tables or at least puts the question out there as to who was even in the wrong in this situation!
posted by Patrick Leo at 8:30 PM on August 15, 2011 [19 favorites]

I'd fight like hell, up to threatening a countersuit over the invasion of privacy. Generally speaking, the company is looking for a no-fuss/no-hassle way out. If you make it clear you are willing to go through (and *put them through*) the wringer over this, they may suddenly find themselves willing to discuss less objectionable alternatives.
posted by bashos_frog at 8:32 PM on August 15, 2011 [3 favorites]

I think Patrick Leo is right. And for all I know, you may even have a case against the co-worker who opened the files. If your friend was using the USB to open up work files he had stored on there, he hasn't done anything wrong -imho. Assuming he never opened up the 'bad files'. The co worker on the other hand is viewing inappropriate material AND violating someone else's privacy at the same time. I'd lawyer up and fight like hell. Of course, the bad part of all of this is that it seems like someone (whether the company or the co worker) is trying very hard and looking very hard (several folders deep) to find things to get your friend fired for. He's got a target on his back, so it would seem. I would take that into account, because if it's not this, they may just keep trying until he turns up one minute late for work next week and get him for that instead...
posted by Jubey at 8:40 PM on August 15, 2011 [2 favorites]

A lot of the philosophy of this article comes into play in this situation, even though the circumstances are radically different.
posted by bashos_frog at 8:41 PM on August 15, 2011

How can they prove your friend actually left the thumbdrive plugged in? The snooping coworker, being a snooper, could just as well have stolen it out of your friend's desk in order to browse its contents. *wink wink*
posted by blargerz at 8:43 PM on August 15, 2011 [6 favorites]

Is it possible the boss's hands are a little tied by the involvement of the other employee, such that he has to refer it to HR, so his aim is to let your friend scoot and still be able to say he's never been fired from a position before? I mean, it's conceivable he's trying to help.

If the company is, say, a tiny Christian book publisher with a morals clause in the employment contract, then resign. If they're out to get him anyway, then resign. If the pictures are criminal in nature, then resign. If it's a large impersonal place with published policies he's not violating, it'll probably be fine. Anything else, it could go either way and be very difficult and costly to fight. Eponysterically ...
posted by Monsieur Caution at 8:49 PM on August 15, 2011 [1 favorite]

A lawyer's going to cost more than he can afford. He might as well try abject confession and atonement, but expect to be the butt of office jokes for a few weeks. Anyone dumb enough to have smutty photos on a portable drive, much less plugging the drive in to a work computer, is probably too dumb to find another job.
While the co-worker is a snoop, he/she isn't the problem.
posted by Ideefixe at 8:51 PM on August 15, 2011

A lawyer is not more than he can afford.

You just have to retain a lawyer, once you do that, the boss/company will know you are serious and realize the fight isn't worth their time.
posted by Patrick Leo at 8:56 PM on August 15, 2011 [4 favorites]

The only possible reason I would resign over something like this is if my grandmother were the one performing the HR investigation, and in the course of her investigation, would have to look closely at my smutty pictures.

Barring that extremely unlikely scenario, I would fight this. Absolutely fight this. And I would be pissed that my privacy was violated.
posted by phunniemee at 8:57 PM on August 15, 2011 [8 favorites]

Retaining a lawyer is free? Not likely. This is a dog of a case, and most legal counsel would suggest that you either resign or collect EDD checks. The snooper can claim that he/she is uncomfortable in such a work environment, and the guy with the exposed dick is gone.
posted by Ideefixe at 9:00 PM on August 15, 2011 [1 favorite]

Ideefixe, how do you know whether or not he can afford a lawyer? Confessing could land him in even more trouble, and what would he be confessing to? He wasn't viewing porn (or whatever) on a work computer, the other guy was. If he admits guilt to anything, they've definitely got him then. I would blame the co-worker for opening and using my private property, and make it clear that you're upset with them and they may have to justify his actions, not the other way around. Sounds like the company is banking on him not wanting to create a scene to get rid of him quietly. I say create the biggest scene you can.
posted by Jubey at 9:02 PM on August 15, 2011 [2 favorites]

It sounds to me like your friend didn't lose his USB drive at all. It sounds to me like maybe it was stolen from him somehow at work. Maybe you should check with your friend and clarify if it in fact was stolen or he lost it.

If it was stolen it sounds like maybe he has an actionable legal complaint against the person who stole it and then looked through several folders to find the pictures. The complaint may extend to his boss and his company as well. Perhaps you misunderstood your friend and the drive was actually stolen from him. Check with him and find out. Perhaps your friend should go into HR fist thing tomorrow morning and file a complaint about his stolen drive that had private and confidential pictures on it . Also no matter what happens your friend should start looking for another job.

If your friend quits he gets ZERO unemployment benefits while he files his legal complaint and police report regarding his stolen USB drive. Do not EVER quit.
posted by Poet_Lariat at 9:04 PM on August 15, 2011 [14 favorites]

I'd be pissed, I agree with the purse analogy, and I'd fight, but the main reason I'd refuse to resign is so I wouldn't be up shit creek if I needed unemployment benefits. I don't know Texas law, and it's possible a bad outcome with HR would result in a termination that would exclude him from unemployment too, but in every state I know of, if you resign it's a certainty you're ineligable. At the very, very least your friend should go to HR so he can try to negotiate a layoff or some other no fault seperation that leaves him with the right to unemployment.
posted by crabintheocean at 9:09 PM on August 15, 2011 [1 favorite]

P.S. If your friend happens to be gay and the pictures were gay oriented then your friend should file an immediate discrimination complaint if he is in one of the following cities :Texas: City of Austin, City of Dallas, County of Dallas, City of El Paso and City of Fort Worth which have anti-discrimination ordinances that apply to gay people. If his company has an HR policy against sexual orientation discrimination he should file that as well . He should claim that his personal effects were broken into in order to embarrass him. Filing such a complaint will buy him several months time in which the company will not fire him until hey can determine if they can be sued or not. The best defense in this case, imho, is an exceedingly string offense. Your friend should adopt the attitude tomorrow that his personal effects were broken into, his privacy violated and that he s being discriminated against in terms of sexual orientation if he lives in the cities above and/or his company has such a policy.
posted by Poet_Lariat at 9:18 PM on August 15, 2011 [12 favorites]

Exactly. Quit and you lose unemployment. also agree you can ever so subtly turn the tables in a non-aggressive way while still giving a mea culpa by mentioning how violated you feel for the invasion of privacy.
posted by chinabound at 9:18 PM on August 15, 2011

If you friend thinks this is not going to blow over, that his boss is using this as an excuse to get rid of him; then I would recommend your friend contact HR himself separately and file a grievance. He was not the one using company property inappropriately; someone else has broken into his private property and used company property to blackmail him. Of course, this will definitely burn bridges with the boss and coworker (but it sounds like they had a reason to go after him in the first place), but I doubt they will have solid grounds to fire him.

In medium to large companies, HR's job is not to fire people, their job is to avoid litigation. Firing someone increases that risk.
posted by meowzilla at 9:32 PM on August 15, 2011 [3 favorites]

Carrying a thumb drive with personal photos on it is not a firing offense. It was careless of him to leave it at his desk, but that's all.

Speaking hypothetically, if someone then downloaded those files onto your friend's computer, and viewed them, and then went to his boss, your friend is the one who should be angry at the invasion of privacy. Who knows how the photos ended up on the work computer?

I'd face HR, and I wouldn't volunteer anything until I'd heard the case against me. Might be time to apologize, or it might be a better strategy to get angry about this, depending on their case.
posted by misha at 9:37 PM on August 15, 2011 [2 favorites]

If your friend ever signed a piece of paper that said he will use the company-supplied equipment for work-related things only, or if he must click a similar statement before he enters his password when he logs in, then really he might as well resign today.

Against the company policy does not mean "firing offense." I am fairly confident that many other employees have bent the "work related only" clause far more egregiously and not been fired.

Tell your friend to review his employee rule book tonight. Tomorrow, he should stay calm and matter-of-fact, apologize for carelessly leaving behind personal property, and pointedly ask why his coworker was rummaging through property that didn't belong to him. Any punishment greater than a note in his file is ridiculous, unless no-one at this office has ever checked their personal email or called their spouse on company time.
posted by desuetude at 9:43 PM on August 15, 2011 [3 favorites]

He should go to HR first. He needs to go them because of all the reasons stated above (co-worker rooting through his belongings, and using company property to do so, etc...). But heeds to go to them first so that he can set the tone of the conversation.

If boss goes to HR first, your friend will have to be on the defensive. He's in a much better position if he's on the offensive.
posted by BurnChao at 9:46 PM on August 15, 2011 [2 favorites]

Is he working in a unionized environment?
If so he needs to get in touch with his union rep and fast.

Without knowing the company or the culture of the company it really is difficult to give steadfast advise. A good company should provide a clear process for disciplinary action and have policy that outlines what is acceptable behaviour at work inclusive of the use of technology. In a unionized environment it is unlikely that you would be sacked for a having smutty photos on a USB - particularly if there was other content on the USB that was being used for work purposes.

At the same time, I'm not so sure that fighting on the basis of a privacy violation will work either. When you work at a computer for a work related reason the employer does have a right to look at your emails and any content on your computer.

It does stand to reason though that when you are at work you should be working. Any and all communications should be developed with the understanding that your employer may and is entitled to view them. Some companies are liberal about the use of personal cell phones and social networking sites but I would say it's best to use your personal devices for social media and do it on your breaks.
posted by YukonQuirm at 10:05 PM on August 15, 2011 [1 favorite]

Who owns the USB drive?

That is the single most salient point.

Get the co-worker fired if he/she perused you personal picture collection. The fact that the drive was plugged into a company device is immaterial at best, and egregiously bad at worst. Hire a lawyer and shred these assholes.
posted by Sphinx at 10:27 PM on August 15, 2011 [5 favorites]

"Oh, hell no. You're going to dig through my personal property"

Here's the potential issue with that. Not sure what OS is in use at the company, and what sort of other filetypes were on the USB stick, but Windows 7 and Vista are both super helpful about doing certain things when you take a thumb drive and jam it in a USB port. Thumb drives I didn't even know had ANY pictures on them, it'll scan and then pop a big friendly multiple choice menu asking what you want to do, including organize the photos.

It's entirely possible the co-worker found the USB stick, thought "hey what the heck is this", plugged it in and the machine scanned the drive and then kindly offered to help organize all the pictures among other things. Co-worker goes "pictures?", CLICK, and three seconds later is seeing far more of your friend than expected.

So I'd be wary of playing up the "snooping" angle especially if it was the computer's autorun that did all the legwork so to speak. Particularly if he goes for the HR hearing option as that will just make him look combative and unlikely to win friends and influence people.
posted by barc0001 at 10:45 PM on August 15, 2011 [6 favorites]

You just don't go digging around in a USB drive that you find at a coworker's desk without permission. You just don't - that's a massive invasion of privacy. The only caveat would be if the USB drive was owned by the department and used communally rather than privately by your friend. It doesn't sound like that was the case, here.

If I were your friend I'd be furious at this violation of privacy. I would go into HR and maintain that I had done nothing wrong and was not going to go away quietly. I would demand action against this invasion of privacy. And I would state my intention to retain a lawyer.
posted by hazyjane at 10:50 PM on August 15, 2011 [2 favorites]

Uh, in the question it is stated that the USB drive was left in a company computer. As in already plugged in. I assume that it is a shared computer, not one at friend's desk only for his use.

If the USB was plugged into the computer and another person using the computer took a look to see if they could figure out to whom it belonged and stumbled across the pics, well, that's not the same as someone finding it and plugging it in, stealing it from a desk, or snooping.

I don't think your friend should resign over this but I don't think claiming "invasion of privacy!" will be a good defense if it was left plugged into a shared company computer. your friend should read up on company policies and talk to a union rep if it's a unionized position, talk to a lawyer, and/or an ombudsman if the company has someone like that.

I suggest going to HR and stating that it was left completely by accident, express embarrassment and apologize for any discomfort the incident may have caused, and swear that it won't happen again? That the pictures took some searching to unearth supports the fact that it was an accident and not an incident of sexual harassment where someone deliberately left naughty pics out for a coworker to find.
posted by emd3737 at 11:26 PM on August 15, 2011 [6 favorites]

How can they prove your friend actually left the thumbdrive plugged in? The snooping coworker, being a snooper, could just as well have stolen it out of your friend's desk in order to browse its contents. *wink wink*

For the original poster, it is entirely possible, depending on the sophistication of the IT dept., that every USB file access is logged along, with what program and user was accessing the file.

If the friend was accessing his/her stash of pron on the work computer, and they have reasonable user screenlock timeouts, there is a chance that the workplace can prove this beyond a reasonable doubt. Browsing porn on a work computer is usually a firable offense, but possession of porn is not.
posted by benzenedream at 11:36 PM on August 15, 2011 [2 favorites]

in every state I know of, if you resign it's a certainty you're ineligable [for unemployment].

Not in Texas. Here's what they say: "Once your application for Unemployment Benefits is submitted, TWC will investigate the reason you are no longer working. If TWC determines that you were not fired for misconduct connected with your work or you quit your job for a work-related or medical reason, you may be eligible for Unemployment Benefits. TWC will notify you by mail of any decisions."

What happens is they let the company know that you filed for unemployment. If the company does not contest it, you get unemployment. If the company does contest it, then you go to a hearing where both you and a representative of the company explain your sides of the argument. The TWC listens to both sides and then makes a decision.
posted by Houstonian at 3:46 AM on August 16, 2011 [1 favorite]

Please do come back and give an update, OP!
posted by vitabellosi at 4:05 AM on August 16, 2011 [4 favorites]

Is this a shared computer? If I found a usb drive on one, I'd look to see what's on it just to identify the drive--and that's what the person who "found" it will likely say. Just as there's no proof that the finder wasn't snooping in it, there's no proof that your friend had plugged it in and can claim that if was plugged into the machine by someone else.
posted by Obscure Reference at 6:52 AM on August 16, 2011

Sounds like the person who FOUND the USB should be fired for looking through somebody else property. If the friend gets fired he might have one hell of a lawsuit.
posted by majortom1981 at 7:59 AM on August 16, 2011

I had a coworker (Jack) that had an unsecured network share loaded with pornography. I had another coworker (Jane) who happened to find it and report Jack to HR. Jack was fired, for cause and Jane was discovered to have been snooping much more thoroughly on the network. Jane was ultimately fired as well for the snooping.

I think that this is going to come down to

1- Who owns the USB drive?
2- Is this a shared computer?
3- Was the drive attached or detached from the computer?
posted by Jacob G at 8:38 AM on August 16, 2011

I'm not an HR professional, but my wife is. She said:
  1. A lot depends on the company's policy.
  2. Nevertheless, "accidental sexual harassment" is a thing. An overheard comment, a photo or website visible on a computer screen, whatever, whether intended to be heard or seen, contributes to creating an environment of sexual harassment. Companies that don't take active steps to create harassment-free workplaces can and will be sued. And they'll lose.
  3. Company owned computers are company-owned. Don't put your USB stick in the company's computer. Viewing or accessing offending materials on company computers on company property constitutes harassment, whether or not they were stored on an employee's thumb drive.
  4. There is no right to privacy in the workplace. If, for example, a company bans knives and guns on company property, managers and HR staff have reason to believe banned items have been brought to the workplace, they can demand access to purses, gym bags, briefcases, car trunks, to search for banned items. This doesn't give co-workers the right to rummage through your stuff; noted here as a reminder that employee privacy rights are not strong. Leave your porn at home.

posted by notyou at 8:46 AM on August 16, 2011 [3 favorites]

There is no right to privacy in the workplace.

No disrespect to your wife but perhaps her opinion is a bit skewed by being an HR person ? Perhaps HR people are employed to protect the company's interests and are not the best advocate nor source of information for a worker's rights?.

No right to privacy in the workplace? Seriously??
Could perhaps laws vary from state to state?
How about when you go to the bathroom at work? Do you have a right to privacy there?
Do you have the right to take calls and texts on your own cell phone without divulging them to the company?
Do you have the right to keep the prescriptions stored in your purse or briefcase while at work private?
How about the sexy picture of your wife or husband that you have stashed away in the little recess of your wallet that you brought to work? How about if it is on your own USB stick instead of a wallet?
Does your supervisor or co-worker have the right to search your wallet and record what types of credit cards that he finds there? How about pictures?

Perhaps the situation is somewhat more complicated than your wife suggests and perhaps laws and protections vary from state to state and city to city?
posted by Poet_Lariat at 9:54 AM on August 16, 2011 [12 favorites]

"No right to privacy" is perhaps an over strong statement, although I did provide a caveat "banned materials plus reasonable belief an employee is in possession of banned materials = right to search personal belongings." Plenty of workplaces, however, conduct random searches of employee belongings as a matter of policy (retailers, warehouses, the shipyard I used to work at...).

The point is, the privacy protection we enjoy in public and in our homes is much narrower in the workplace.

Perhaps the situation is somewhat more complicated than your wife suggests and perhaps laws and protections vary from state to state and city to city?

Of course. I shared with her the details provided by the OP (USB stick left in company computer, offending materials discovered by another employee). I shared her opinion with you and the rest of MeFi to clear up what I felt were some misconceptions in the thread (what constitutes sexual harassment; the breadth of privacy rights at work). She offered no opinion on the situations you identify because she wasn't asked. Most, however, would seem to be covered by the "no search unless there's a reasonable belief banned materials are present" caveat.

If that sexy picture in your wallet falls out onto your desk and is viewed by the prudish dude in the next cubicle? My guess (and not my wife's professional opinion): HR is probably gonna demand to have a look at your stuff.
posted by notyou at 10:38 AM on August 16, 2011

In my non-expert opinion I think it all really depends on whether or not it was his personal USB drive or a company drive.

If it was his drive, as far as I'm aware it's legally covered by privacy laws and unless they can prove that he actually viewed the illicit photos on his company computer, he's covered. So in that case, I'd go through the investigation.

If it was a company drive, it's his ass and he should probably take the out.

Keep in mind, management's only real concern here is the fact that other people will find out about this guy working there, which would create a hostile working environment that could theoretically led to claims of sexual harassment It costs them nothing to give the guy an out before the HR investigation that may or may not result in his firing.

If he can afford to do it, I'd quit, but I'm in my 20's and have no dependents, so there's that.
posted by rudhraigh at 11:50 AM on August 16, 2011

I guess I don't undertand what the advantages to quitting might be in this situation?

In many places, if you are fired, and someone calls your ex-employer for a reference, the ex-employer won't give any more information than your dates of employment. There may be some caveat like, "Not eligible for re-hire," but I would think that would also apply if your friend quit under these circumstances. Employers try to cover themselves, and that can work out better for the ex-employee in the long run. And sometimes when you are fired you are eligible for unemployment.

So I am still not sure what the advantages are to quitting, unless actual legal charges of sexual harassment were pending if your friend did not resign?

That's why I think it is in your friend's best interest to face HR and not quit, OP.
posted by misha at 12:05 PM on August 16, 2011

So I am still not sure what the advantages are to quitting

The only advantage (and it's not much of one) is, when someone asks in the future, he can honestly say "I resigned" rather than "I was let go." That and avoiding the embarrassment of a "trial" before HR.

Btw, I'm sure I'm not the only one who really really wants to know how this comes out. OP, please update when you can! Thanks.
posted by drjimmy11 at 5:26 PM on August 16, 2011

Nthing lawyer. Probably too late now but can he bring one to the HR "hearing"?
posted by T.D. Strange at 6:42 PM on August 16, 2011

Your friend should not, under any circumstances, "resign". There would have been no phone call home if they weren't in a panic, including worrying about the snooper. They don't want this mess -- although they should have offered to terminate withseverance if they were smart, which is a deal that maybe would have been worth taking.

FWIW, once your friend has consulted with a lawyer, he may be advised to present himself as a person with a sex problem that may work to his advantage (and be referred to Employee Assistance Programs through his benefits). I'm not saying it's right or the easiest road, but it may help your friend stay on the job.
posted by thinkpiece at 6:48 PM on August 16, 2011

Also, if he goes to the HR 'investigation" in the a.m., he should sit and listen, take notes, say non-confrontational/non-defensive nothing, schedule another meeting when he has his own representative available.
posted by thinkpiece at 6:50 PM on August 16, 2011

Uh, in the question it is stated that the USB drive was left in a company computer. As in already plugged in. I assume that it is a shared computer, not one at friend's desk only for his use.

This isn't a safe assumption. I would describe any company-owned computer as a company computer, whether it was in a private office, cubicle, or a laptop in my messenger bag. The idea that personal sexypictures are "banned" from possession is also total speculation.

I don't think that it matters overmuch if it was a "company" USB drive or not, either. USB drives are cheap and ubiquitous. A single USB drive is less like a piece of hardware and more like a single notepad or pen in terms of being "company property." (Lifting supplies in volume is theft, but writing your grocery list with a "work pen" is not.)

Nevertheless, "accidental sexual harassment" is a thing. An overheard comment, a photo or website visible on a computer screen, whatever, whether intended to be heard or seen, contributes to creating an environment of sexual harassment.

Workplaces are obligated to educate their employees as to appropriate workplace standards and to avoid "unintentional" sexual harassment (e.g. it ain't Mad Men anymore.) Watching porn semi-openly during work hours represents s a blatant disrespect for one's fellow colleagues. Finding a picture of me in a bathing suit by rummaging through my desk drawer...not so much.
posted by desuetude at 10:40 PM on August 16, 2011

Please provide us an update when you are able.
posted by allkindsoftime at 3:24 AM on August 17, 2011 [12 favorites]

I wonder if the friend reads as creepy to the coworkers. That might explain the reaction. Some people do creepy things that they then act innocent about when called on. If he's already been creeping out the other coworker then I could see how this one thing might be seen as the final straw to other people.
posted by bleary at 7:24 AM on August 17, 2011

There's enough gray area here that were I an HR rep, I would want to avoid firing your friend over this issue. I also believe the issue is strongly tied to whether or not your friend left the USB in a company computer. It's one thing to rifle through someone's purse, another if they dump the contents out on your desk.
posted by xammerboy at 1:00 PM on August 17, 2011

Response by poster: Well, here's the update: he resigned. He did some soul searching and decided that the fight wasn't worth the battle. He was pretty amazed at all the responses he received here, and I turned him on to the site. The good news is that it looks like he's landed another position already!
posted by rtodd at 7:39 PM on August 20, 2011

Thanks for the update. I trust your friend will pursue a more strict separation of work and home USBs in the future...
posted by allkindsoftime at 7:00 AM on August 26, 2011

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