HOT TOPICS IN EMPLOYMENT LAW. , Voic , and Employees Right To Privacy: Monitoring Employees Electronic Communications. by Andrew M.

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1 HOT TOPICS IN EMPLOYMENT LAW , Voic , and Employees Right To Privacy: Monitoring Employees Electronic Communications by Andrew M. Low Employers have plenty of legitimate reasons for wanting to monitor employees e- mails and voic s. Those reasons include preventing employees from wasting time while on the job, protecting trade secrets, and avoiding liability for sexual harassment. But, is it legal for an employer to review surreptitiously employee s electronic communications? Would such a review of s and voic s violate employees statutory rights or common-law right to privacy? No doubt employees have certain rights to privacy in the workplace. 1 However, whether any of those rights preclude an employer from monitoring employees electronic communications has not yet been decided. This article looks at the applicable federal statutes and considers whether employees have a right to privacy when they use their employers and voic systems. The Federal Statutes The starting point for analysis of this issue is Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ( Title III ), 2 as amended by the Electronic Communications Privacy Act of 1986 (the ECPA ). 3 Title III, the original federal anti-wiretapping law, applied only to interception of oral and wire communications carried by a common carrier in other words, face-to-face conversations and telephone calls over a public utility like AT&T. 4 By the mid-1980s, however, Congress noted dramatic changes in new computer and telecommunications technologies. 5 Communications were taking on new forms. Large volumes of data were being transmitted both by wire and wireless communication systems. Use of pagers was increasing, voic was common, and was just making its first appearance. Against this backdrop, Congress enacted the ECPA to bring the existing wiretapping laws in line with technological developments and changes in the structure of the telecommunications industry. 6 In drafting this new law, it appears that Congress was concerned mainly with interception of electronic communications by strangers. Whatever the reason, the ECPA does not specifically cover monitoring of employee communications by their employers. Whether such conduct is legal is a question of great significance for employers. If monitoring employee communications violated Title III and the ECPA, employers that did so could be subject to criminal prosecution 7 and significant civil damages. 8

2 The ECPA provides two different and inconsistent standards governing when employers may obtain employees electronic communications. One set of standards governs interception of communications, while an entirely different set of standards applies to retrieval of electronic messages from computer storage. Interception of Electronic Communications Title I of the ECPA applies to interception of electronic communications, which apparently means reading, hearing, or copying the communication while it is en route. 9 An employer that seeks to monitor electronic communications live before they are delivered to their destination runs a considerable risk of violating Title III and the ECPA. An employee is permitted to intercept messages only in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service An employee who intercepts s as part of the employer s program of monitoring employee communications would not fall within this exception and thus could violate Title III and the ECPA. Moreover, employers generally are barred from intercepting voic messages, 11 which are treated throughout the ECPA as though they were ordinary telephone calls: A provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. 12 Although this section states that it applies only to provision of wire communication service to the public, the legislative history of the ECPA reveals Congress s belief that a private telephone system established by a company whose activities affect interstate commerce would also be covered. 13 Retrieval of Communications From Computer Storage In sharp contrast to the tight limitations on interception of s and voic s, the ECPA apparently grants employers almost unlimited access to employees electronic communications when the employer, instead of intercepting the communication while it is en route to its destination, simply retrieves the message from computer storage (at least when the communications system is strictly internal and is accessible only to employees). The ECPA bans unauthorized access to electronically stored messages, but provides a broad exception when access is by the person or entity providing a wire or electronic communications service. 14

3 This exception appears to be broad enough to cover employers that provide internal and voic systems. As long as the employer allows s and voic s to be delivered to their destinations without being read or overheard while the messages are en route, the employer probably has the right to store the messages in computer memory and retrieve and examine them later. While this rule applies to employers that maintain private electronic communications systems for its employees only, employers should be careful if they maintain communications systems that also are available to use by the public. 15 No cases have considered this aspect of the ECPA, so it is unknown whether the mere fact that, for example, customers or clients have access to an employer s communication system would mean that the system was no longer private and that the employer consequently could not retrieve and review stored messages. Employee Consent Employers that monitor employees communications can protect themselves by obtaining employees consent in advance. Title III provides that it is not unlawful for a person to intercept wire or oral communications where one of the parties to the communication has given prior consent to such interception. 16 Similarly, for access to electronically stored messages, access is lawful when it is authorized... by a user of that service with respect to a communication of or intended for that user. 17 Consent must be express or at least implied from clear notice to the employees. Courts generally have not accepted the argument that an employee should have known that the employer might monitor communications. 18 At least one state (Connecticut) has adopted legislation specifically requiring employers to give employees notice before monitoring electronic communications. Similar legislation recently has been proposed in California. Common-Law Claims Based on Monitoring Possible claims by employees also could arise under the common law. Under the Second Restatement of Torts, an employee has a claim for invasion of privacy where the employer intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his or her private affairs or concerns... if the intrusion would be highly offensive to a reasonable person. 19 This right of privacy arises in areas where the employee has a reasonable expectation of privacy. Under this standard, taking motion pictures of employees at work for the purpose of increasing efficiency and promoting safety is not an invasion of privacy. 20 In Colorado, it has been held that an employer s disclosure to the Internal Revenue Service of employee tax information did not violate the employee s right to privacy. 21 The only reported case that considered whether employer monitoring of employees constituted an invasion of privacy is Smyth v. Pillsbury Co., 22 in which a federal district court in Pennsylvania held in favor of the employer. The employer repeatedly had assured its employees that all communications would be confidential and would not be intercepted or used as grounds for termination or reprimand. Smyth sent s from

4 his home to his supervisor threatening to kill the backstabbing bastards (referring to the company s sales management) and referring to an upcoming company party as a Jim Jones Koolaid affair. The company terminated Smyth, who sued for wrongful discharge in violation of public policy. The court found that the only arguably applicable public policy would be the right to privacy, but that the company had not violated Smyth s rights because an employee has no expectation of privacy in communications sent over the company s system and because interception of such messages would not be highly offensive. Finally, the court concluded the following: [T]he company s interest in preventing inappropriate and unprofessional comments or even illegal activity over its system outweighs any privacy interest the employee may have in those comments. 23 While the holding in Smyth certainly favors employers, it is important to note one fact that could be used to distinguish the case. The in Smyth was sent directly to the employee s supervisor, so the company did not have to use any electronic monitoring techniques to learn of the employee s comments. Given the company s assurances that employee would be confidential and would not be used as grounds for termination, the outcome might have been different if the company had violated its pledge and had learned of the employee s message by surreptitious means. Employers Should Adopt a Policy and Obtain Consent In light of the uncertainty over how the courts will apply the ECPA and the common law of invasion of privacy to claims by employees arising from monitoring of electronic communications, employers should protect themselves by obtaining employee consent. Although no single set of procedures will work for all employers, before adopting a policy, employers must consider the following: How much use of the company s and voic systems will be allowed? Is a one-line inviting another employee to lunch acceptable? How about a multi-page message that obviously took a long time to compose? Does the company want to place any restrictions at all on employees use of the system for personal communications? Does the company want to tell employees that their communications may be monitored at any time, without prior notice? Such a sweeping policy provides solid legal protection against employee claims, but could foster an atmosphere of mistrust.

5 Some companies pledge not to monitor s or voic s except as necessary to administer the system or to investigate particular cases based on individualized suspicion of wrongdoing. Companies that adopt such a policy should be prepared to stick to it. The policy should tell employees that (a) messages are not private merely because the employee is issued a password and (b) communications they delete can be retrieved by the system administrator. The policy should remind employees that s sometimes become evidence in lawsuits and that they should send only messages that they and the company would not be embarrassed to have others read. The policy should state in strong terms that the company s and voic systems are not to be used to transmit (a) messages that are sexually graphic, contain sexual overtures or innuendoes, or contain profanity; (b) messages that are demeaning to persons of any particular gender, race, religion, national origin, or sexual orientation; or (c) messages that have no business purpose and that would be unwelcome or offensive to the recipients. The strongest protection for employers is to reduce the policy to writing and to have every employee sign it, indicating the employee s consent to monitoring, preferably at the time the employee begins work. Weaker alternatives include (a) circulating a memorandum to all employees stating the policy and warning that electronic communications may be monitored at any time or under the circumstances stated in the policy (any such memorandum must be re-distributed periodically in order to reach new employees); and (b) setting up the system so that each time an employee logs on, a warning notice appears for a few seconds stating that and voic communications are subject to monitoring by the company. 24 Conclusion No court decision addresses whether employer monitoring of employee s and voic s would violate Title III and the ECPA. Analysis of those statutes indicates that employers should be safe as long as they do not intercept messages and voic s while en route and only monitor communications by retrieving them from computer storage. To be completely safe, however, employers should adopt express policies concerning usage of company communication systems and monitoring of employee communications, and should obtain employees consent to such monitoring in advance and in writing. NOTES

6 1. See generally Cornish, Workplace Privacy, Autonomy, and Dignity in Colorado: Part II, 27 The Colorado Lawyer 5 (Dec. 1998). 2. Pub. L. No , 82 Stat. 197, , codified in 18 U.S.C Pub. L. No , Oct. 21, 1986, 100 Stat. 1848, codified in 18 U.S.C. 1367, 2232, , , 3117, U.S.C. 2510(1), (2), (4). 5. S. Rep. No , 99 th Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N Id. 7. See 18 U.S.C. 2511(1). 8. See 18 U.S.C See 18 U.S.C. 2510(4), (12) U.S.C. 2511(2)(a)(I). 11. Random monitoring of employees business telephone calls, pursuant to a policy announced to employees in advance, using ordinary telephone extensions, does not violate Title III. See James v. Newspaper Agency Corp., 591 F.2d 579 (10 th Cir. 1979) U.S.C. 2511(2)(a)(I). 13. S. Rep. No , 99 th Cong., 2d Sess. at 12, reprinted in 1986 U.S.C.C.A.N. 3555, U.S.C. 2701(c)(1). 15. See, e.g., 18 U.S.C. 2511(3)(a) U.S.C. 2511(2)(d) U.S.C. 2702(c)(2). 18. See Griggs-Ryan v. Smith, 904 F.2d 112, (1 st Cir. 1990); Campiti v. Walonis, 611 F.2d 387, 393 (1 st Cir. 1979). 19. Restatement (Second) of Torts 652B (1977). 20. See Thomas v. General Elec. Co., 207 F. Supp. 792 (W.D. Ky. 1962). 21. See Wells v. Premier Indus. Corp., 691 P.2d 765 (Colo. App. 1984) F. Supp. 97 (E.D. Pa. 1996). 23. Id. at In adopting a policy that restricts employees rights to use electronic communication systems for non-business purposes, practitioners representing companies with a union workforce and companies where union organization is taking place should be aware of several decisions by the National Labor Relations Board. See, in this issue, Josserand, The Impact of Employer Rules that Limit Use and Internet Access, 29 The Colorado Lawyer 7 (Oct. 2000). Andrew M. Low, Denver, is a partner in the firm of. Low is a member of the firm s employment group.

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