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E-mailing, texting, and illegal wiretapping are featured in three cases that involve privacy in the workplace. Although the decisions may appear to be varied, there is a common thread: A well-crafted, broadly distributed and acknowledged electronic resources policy is of paramount importance when defending against an employee’s invasion-of-privacy claim.

E-mails

In March 2010, the New Jersey Supreme Court ruled that plaintiff Marina Stengart, a former employee of Loving Care Agency, had a reasonable expectation of privacy in e-mails exchanged with her personal attorney through her personal e-mail account, even though those communications were stored on a company-issued laptop.

The court’s ruling is binding only for employers doing business in New Jersey but it’s the first decision of this kind from a state supreme court, so it may be persuasive in other states.

Also:

• The decision does not appear to apply outside of attorney-client privileged communications.
• While the court found that the plaintiff had a reasonable expectation of privacy in her e-mails, it did not suggest that she had a viable claim against her employer for invasion of privacy, which would require the employer’s review of the e-mails to be considered highly offensive to a reasonable person.
• Most importantly, the employer’s electronic resource policy did not notify its employees of its ability to retrieve e-mails, including e-mails transmitted through personal accounts. In fact, the policy did not even mention personal e-mails.

Text messages

In June 2010, the U.S. Supreme Court held that the city of Ontario, Calif., Police Department did not violate the Fourth Amendment rights of a SWAT team member, Sgt. Jeff Quon, by reviewing text messages sent and received by him on a department-issued pager. The court ruled that even with the assumption that he had a reasonable expectation of privacy, the city’s review of his text messages was motivated by a legitimate, work-related purpose and was not excessive in scope.

The court emphasized the importance of a well-crafted and broadly distributed electronic resources policy stating that the employer’s policies concerning communications “will, of course, shape the reasonable expectations of employees, especially to the extent that such policies are clearly communicated.”

The court pointed out that corporate e-mails and text messages sent by cell phones are two distinct forms of communication. The former is sent through (and often stored on) a company-owned server, whereas a text message is sent through the cell phone provider’s server. If applicable, both forms of communication should be addressed in the employer’s policy.

Illegal wiretapping

In September 2010, the Seventh Circuit Court of Appeals in Chicago affirmed the criminal conviction for federal violations by an IRS agent who activated the “auto forwarding” feature on his supervisor’s Microsoft Outlook, causing a copy of all incoming e-mails to his supervisor to be forwarded to his own mailbox.

For employers, the court’s decision highlights the risk of commonplace information technology actions. Corporate IT departments routinely activate “auto forwarding” after an employee has left an organization so that a supervisor or coworker can promptly respond to e-mails intended for the former employee. IT departments commonly rely on “e-mail journaling” as well, to create a duplicate set of outgoing and incoming e-mails for archival purposes.

Even if the IT department activates these features for legitimate business purposes, the employer remains at risk of civil liability under the federal Wiretap Act, and the monetary damages can be significant. If “auto forwarding” or “e-mail journaling” were activated on an enterprise-wide basis, the potential exposure could be substantial.

Employers can reduce the risk of harm by providing employees with notice of the relevant IT procedures and obtaining the employees’ signed consent.

Items that should be part of a well-crafted electronic resources policy include:

• Informing all employees that the policy applies to every employee.
• Warning employees that the company will monitor the use of employees’ electronic resources including, but not limited to, computers, cell phones and pagers.
• Notifying employees that duplicates of e-mails transmitted through a personal e-mail account using company equipment may be stored on that equipment.
• Explaining that the company may, at its discretion, review all communications stored on, or transmitted by, company equipment regardless of whether a personal account is used, subject to state laws regarding attorney-client communications.
• Prohibiting employees from using any company resources (including the telephone) to communicate with a personal attorney, except with the company’s prior approval.
• Warning employees that they can be disciplined for violating any part of the policy.

Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or [email protected].

Don Stait, a paralegal in Littler’s Portland office, assisted in preparing this article. Contact him at [email protected].