Employers who seek to regulate or
monitor their workers’ electronic
communications could be stepping into a legal quagmire. Lest they get their
shoes muddy (and mess up their legal
standings, too), employers should be up to
date on court rulings on employee communications. The latest ruling comes from the
9th Circuit Court of Appeals in California.
Smart Business asked Michael A.
McCabe, a shareholder at the Dallas law
firm of Munck Carter, P.C. with expertise in
e-discovery and labor and employment law,
to help sort out the situation.
Let’s cut to the chase; can I legally monitor
workers’ e-mail accounts?
Yes, in most states. But, you have to go
about it in the right way. The key is to defeat
the employee’s expectation of privacy in his
or her workplace communications.
Employers can do this by distributing a
policy that clearly and unambiguously
states that any communication made over
the company’s e-mail system is not private
and will be monitored by the employer.
Having established no expectation of privacy to workplace communications, the
employer is on solid ground to legally monitor the communications.
Does that mean I can monitor personal communications on company computers?
This is a relatively new and dynamic area
of the law that is constantly being fine-tuned. However, most courts have consistently ruled that so long as an employer’s
policy dispels any expectation of privacy, it
is fair game for the employer to review communications made over the employer’s
e-mail system.
Some courts have gone so far as to hold
that communications between employees
and their lawyers cannot be privileged if the
employer retains the right to review communications sent or received over the company’s e-mail system. In the words of one
court, a properly drafted policy is equivalent
to notifying employees that ‘the employer
[is] looking over your shoulder each time
you send an e-mail.’
How about monitoring other technology like
cell phones, voice mail, BlackBerrys?
Written communications, in whatever
form, that are transmitted over the employer’s computer system can be monitored if
the employer’s policy eliminates any expectation of privacy. This same rule should
apply to voice-mail communications that
are transmitted over an employer’s e-mail
system.
Monitoring cell phone conversations is a
different story altogether. The law of most
states and the federal government is that
telephone conversations can be monitored
if proper notice is given and consent
received. In some states, only one person to
the conversation needs to consent to being
monitored, while in other states, all parties
to the conversation must consent. That’s
why you’re informed that your telephone
conversation is being recorded when you
call a customer service hot line.
To monitor employee’s cell phone calls,
you would have to receive consent from
both the employee and whomever he or she
calls because you don’t know if he or she is
calling one of the more restrictive states.
For all practical purposes, it would be very
difficult to implement such a policy with
cell phones.
But didn’t the 9th Court’s June decision draw
some lines?
Not as much as you might think. The 9th
Circuit ruled that Arch Wireless, a text message provider, violated the federal Stored
Communications Act (SCA) by disclosing a
police officer’s sexually explicit text messages to his employer, the City of Ontario
Police Department, even though the city
was the subscriber on the service contract.
In the court’s view, Arch Wireless violated
the SCA because it disclosed stored text
messages to a third party without the consent of either party to the communications.
This does not, however, stop employers
from monitoring e-mails that are sent
entirely over their own e-mail and computer systems. The easiest way for employers
to avoid the 9th Circuit’s ruling is to limit
business communications to those devices
that can be monitored by the employer,
such as BlackBerrys and traditional e-mail.
Can I take disciplinary action against an
employee for a post to an industry blog?
Probably, but it can differ from one state to
the next and between public and private
employers. There are several cases in which
employees were fired or disciplined for
material they posted on an industry or personal blog that was critical of their employer. Other employees have been disciplined
for making statements online that appear to
be the employer’s official position on a topic.
To avoid these problems, all employers
should have a policy that prohibits employees from blogging about their employer
without making their employment status
known and without stating that the
espoused views are personal to the employee and not the views of the employer.
Furthermore, the policy should remind
employees that they can be disciplined if
they paint the company in a bad light.
MICHAEL A. McCABE is a shareholder at Munck Carter, P.C. and a member of the firm’s labor and employment and litigation sections.
He can be reached at (972) 628-3609 or [email protected].
