employee privacy issues - email texting social mediaThe information age has ushered in many new wonderful ways to communicate.  It’s also forced businesses to face tough employee privacy issues.  In this week’s post, we’ll discuss how employee privacy pertains to the use of email, texting, and social media. 

The Electronic Communications Privacy Act of 1986 (ECPA) created the foundation on which employers can monitor electronic workplace communications.  As such, employers are allowed, but not limited to, monitoring the following:

  • Internet usage
  • Email sent and received from a work computer (in most instances)
  • Communications relating to a work-issued cell phone or pager

But what does ‘monitoring’ mean?  Do employers have free reign?  What rights do employees have in relation to electronic communications? 

Here are three real-life situations that address these questions:

What if I send personal email from my web-based email account on a work computer?
The 2010 New Jersey Supreme Court case Stengert vs. Loving Care Agency, Inc. has become an important employee privacy case.  An employee sent emails to her attorney from her work computer using her personal web-based email account.  The employer’s policy dictated that images are taken of all websites visited by employees.  As such, they were able to obtain images of the employee’s emails and attempted to use these emails against the employee in litigation. 

The employee argued these emails should remain private, regardless of whether or not she sent them from her employer’s computer.  The New Jersey Supreme Court ruled in favor of employee. 

The reason?  The employer’s boilerplate electronic communications policy was ruled too ambiguous since the company did not specifically mention that personal web-based emails would be stored in their webpage monitoring system.

Key Takeaway:  Review your policy regarding monitoring internet use within the workplace.  Does it leave anything open to interpretation? 

Is my employer allowed to monitor my personal text messages on a work-issued pager or cell phone? 
The privacy laws surrounding the monitoring of personal text messages sent from work-issued cell phones and pagers are murky at best.  However, in June, 2010 the U.S. Supreme Court case of City of Ontario vs. Quon provided an interesting result.  It was ruled that the Ontario, CA police department did not violate an officer’s Fourth Amendment rights when his supervisor reviewed personal text messages the officer sent on a work-issued pager.  The decision was made even though the department’s policy did not specifically mention that text messages would be monitored.

This decision involved a public agency, however, it could set a precedent for private employers who seek to monitor employee text messages sent from employer-supplied devices. 

Key Takeaway:  Employees should assume all electronic devices provided by the employer are subject to monitoring regardless of whether or not the device is mentioned in the employer’s policy. 

Should I be concerned with what I post to Facebook and other social media?
Don’t like your boss?  Tired of the company’s direction?  Do yourself a favor:  Don’t discuss it on social media outlets like Facebook and Twitter.  I know, tweeting your frustration to a friend or posting off-handed remarks to your Facebook Wall might seem harmless.  It isn’t.  Numerous employees have been fired for comments posted on the internet.  Just two weeks ago, an NFL player lost all of his endorsements following comments he made on Twitter.  

Employers who take action against employees must be cautious as well.  In November, 2010, the National Labor Relations Board (NLRB) filed a complaint against a company for firing an employee for posting some negative comments about her employer on Facebook while outside the workplace.  The two sides ended up settling for an undisclosed amount. 

Key Takeaway:  As an employer, your policies regarding the use of social media must be rock solid prior to terminating an employee or it could be costly.  As an employee, be smart.  It’s never in your best interest to say anything inflammatory within social media.