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Today's employers face expanding "e-workforce" issues as e-mailing, texting, blogging and social networking become routine activities in the workplace, according to Karla Grossenbacher, an attorney with Seyfarth Shaw.
Employers have a variety of legitimate reasons to monitor employees' technology use, but they should be aware of the laws that place limits on their ability to access electronically stored communications, she said on Nov. 17 at the National Employment Law Institute Employment Law Conference in Washington, D.C.
Monitoring electronic communications in the workplace involves both a statutory and a common-law analysis, Grossenbacher said.
Under the federal Stored Communications Act (SCA), an employer can't—without authorization—intentionally access "a facility through which an electronic communication service is provided," unless the employer supplies the service.
[SHRM members-only toolkit: Managing Workplace Monitoring and Surveillance]
In other words, an employer can review e-mails sent and received through its own server, but it can get into trouble if it accesses an employee's personal e-mail account through a password that's stored on a work-issued device, Grossenbacher explained.
She noted that even if a monitoring activity is permitted under the SCA, an employer could still be liable under a state-law invasion of privacy analysis.
Invasion of privacy laws vary from state to state, she explained, but they generally provide that an employer can't intentionally intrude on the private affairs of an employee if the intrusion would be "highly offensive to a reasonable person."
For this reason, employers should even be cautious about reviewing employees' personal e-mails that are sent through their work accounts.
The employer's policy should expressly state that workers have no expectation of privacy regarding e-mails sent through the company's system and that the employer reserves the right to monitor work accounts.
HR professionals may wonder what it means to access information "without authorization" under the SCA.
There aren't many cases that address employer access to stored electronic communications, Grossenbacher said.
"Even though we've had e-mail in the workplace for a long time, it takes a while for a lawsuit to get through the litigation process," she explained.
The following four federal district court cases considered whether an employer violated the SCA or state privacy laws by accessing electronic communications:
Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, S.D.N.Y., No. 08 Civ. 4810 (Aug. 22, 2008)
Lazette v. Kulmatycki, N.D. Ohio, No. 3:12-cv-2416, (June 5, 2013)
Sunbelt Rentals, Inc. v. Victor, N.D. Cal., No. 13-4240 (Aug. 28, 2014)
Grossenbacher noted that the SCA was written in 1986 before today's technology was foreseen or understood.
Maremont v. Susan Fredman Design, N.D. Ill., No. 1:10-cv-07811 (March 3, 2014)
Grossenbacher said employers should consider the following points from the available case law:
Employers should think about who is setting up the business' social media accounts and should have a clear understanding upfront about who is granted access to those accounts and what rights employees have with regard to those accounts, she added.
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