SUPREME COURT TO EXAMINE EMPLOYEES' RIGHT TO PRIVATE ELECTRONIC COMMUNICATIONS
Traditionally, employers have been allowed to play the role of private investigator when it comes to monitoring employees’ electronic communications over company provided devices. The rational is that the employer owns the equipment and, therefore, should be allowed to review its contents. Review of employee emails and text messages allows the employer to monitor efficiency, business disclosures, and proper use of company equipment. According to a 2005 survey conducted by the American Management Association, over half of employers review and retain employee emails and 84% have company email policies. These statistics reflect the fact that employee monitoring is generally accepted and only minimally regulated.
The right to personal privacy is generally considered a liberty protected against government interference by the Constitution’s due process clause. The federal Electronic Communication Privacy Act of 1986 was designed to specifically protect personal electronic communications from interception by government entities without a warrant. Protection of electronic communications from interception by non-government entities is left to the states. Thus, the best protection of an employee’s right to privacy is found in tort law. California is the only state that recognizes a state Constitutional right to privacy. Invasion of privacy occurs when one intentionally intrudes upon the private activities of another and the invasion would be highly offensive to a reasonable person. Additionally, there must be a reasonable expectation of privacy.
As technology has advanced, the number of lawsuits involving the wrongful interception of employees’ personal electronic communications has increased. In these cases, the courts will weigh the employee’s reasonable expectation of privacy against the employer’s legitimate business interests. In the past, courts almost always ruled in favor of the employer, but recent decisions have begun to shift this trend.
In the case of Stengart v. Loving Care Agency, Inc., et al, No. A-3506-08T1 (S.C.N.J. June 26, 2009), the employer intercepted an email from an employee to her attorney via a personal, password-protected Yahoo account. The Court rejected the notion that the employer could intercept private communications simply because it owned the computer used to make such communications. It stated that“property rights are no less offended when an employer examines documents stored in a computer as when an employer rifles through a folder containing an employee’s private papers.” The Court further noted that the principles underlying the attorney-client privilege outweighed the employer’s interest in imposing a unilateral regulation.
Following in the footsteps of Stengart, Convertino v. US Department of Justice, No. 2004-CV-0236 (RCL) (D.D.C. Dec. 10, 2009) held that the Department of Justice (DOJ) could not intercept emails sent by an employee to his personal attorney because it violated the attorney-client privilege. The Court, citing In re Asia Global Crossing, Ltd., 322 B.R. 247, 258 (S.D.N.Y. 2005), stated that “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” The employee in Convertino had a reasonable expectation of privacy because the DOJ policy did not ban personal use of email and employees were unaware that the DOJ regularly accessed and saved personal emails.
In the recent case of City of Ontario v. Quon, the 9th Circuit Court of Appeals considered an employees’ right to privacy when sending text messages. In this case, a police officer complained when the department intercepted text messages sent on a government-provided device. The official policy of the department contained no guarantee of employee privacy to text messages; however, the informal policy indicated that text messages would not be reviewed as long as employees paid for charges over the government allowance. The Court ruled that the informal policy gave the police officer a “reasonable expectation of privacy” and the department violated the officer’s fourth amendment rights. Unlike email that is paid for and stored on company equipment, the text messages were paid for by the employee and stored by the telephone company; therefore, the employee had a right to privacy. On December 14, 2009, the US Supreme Court agreed to hear the case on appeal. The decision will have a great impact on employees’ privacy rights regarding electronic communications.
Until employee privacy rights become more defined, employees should exercise a high level of discretion when using electronic equipment provided by their employers.
Strategy:
1. Obtain a copy of your employer’s electronic communications policy. Generally, company policies are legally binding and must be adhered to by employees.
2. Do not assume a right to privacy while at work. To the extent possible, use company equipment for work purposes only.
3. If you have discovered that your personal emails, text messages, or other private communications have been reviewed or retained by your employer, contact an experienced California labor law attorney to discuss your rights.
While companies continue to downsize their workforce in order to cut costs, they may try to avoid being hit with the additional expenses associated with layoffs. This includes payment of wages, overtime, and accrued vacation days as well as expensive severance packages. No doubt there is a similar incentive for employers to dodge the payment of unemployment benefits. The key for employees is know their rights and recognize when it is appropriate to appeal a denial.
