Employers Should Be Cautious When Monitoring Employee Private Communications
August 28, 2009
by Michael Fleming
As we all have seen, the systems people use to communicate continue to expand and grow more complex. Moreover, these new systems are being used by employees on and off the job, creating difficulties for employers as personal and work-related systems become more enmeshed with each other. For example, where should lines be drawn where an employee is using work-related equipment to read her personal web-based mail?
In one employer's recent travail, the lines were drawn too closely. In a Virginia case, a federal appellate court has confirmed that an employer, whose president apparently surreptitiously monitored his employee's use of her personal AOL account, and obtained her password as a result, and in turn continued to read her personal e-mail for months after she had left the employer's job, was in violation of federal law prohibiting the unauthorized access to another person's stored electronic communications. Although not entirely clear from the appellate opinion, it seems likely that the employer obtained this access through monitoring of the employee while she was using work-issued computer systems. The court upheld a punitive damages award against the now-former employer and its president individually.
While the employer may well have considered that anything that passes through its equipment and its wires is fair game for the employer to monitor and otherwise use, the cases have not been nearly so forgiving. In past months, we have also observed an employer being sanctioned for monitoring of personal communications of an employee who was using a work-issued cell phone. Employee right-to-privacy concerns are under much discussion. And, the influx of social media systems into the workplace is only making things more complex for the modern employer.
This is an evolving area, and the rapidly altering technologies are making it more difficult to draw simple rules of thumb. Compounding the difficulties for businesses are the dangers posed by potential employee malfeasance. For example, it can be very difficult to maintain perimeter control over highly confidential data without simultaneously encroaching, if only for a moment, on a personal discussion. And, courts in this country (and more so in other countries) are finding an inherent right for an employee to engage in some level of private and personal communications even while on the clock. Employers who are considering monitoring employee communications, whether over work-issued systems or in a non-work-related setting, should do so only upon careful consideration at a management level and obtain up-to-date legal advice.
- Michael Fleming is a member of the Larkin Hoffman Daly & Lindgren Ltd. Intellectual Property, Technology and Internet Practice.