In today’s workplace, there is virtually unfettered access to text messages, e-mails, Internet use and other electronic messaging. At the touch of a button, anyone can switch from bar graphs for the upcoming client presentation to brew pubs on a social Web site. Got a minute, send a text. The proverbial coffee break has transformed into the electronic age. The question remains: if an employee uses company computers/equipment for personal communications, is that cloaked with privacy or open to employer monitoring?
One aspect of this debate is being considered this year by the United States Supreme Court, which will decide whether a police sergeant had a reasonable expectation of privacy in text messages transmitted on a department-issued pager and stored by an outside service provider. A federal appeals court in California found that the officer had a reasonable expectation of privacy in the content of his text messages, some of which were sexually explicit and sent to his wife. The appellate court reasoned that the police department’s informal policy that text messages would not be audited if an individual officer paid overages meant that the officer had a reasonable expectation of privacy in those messages.
Yet, other courts have reached the opposite conclusion that an employee has no expectation of privacy in electronic messages, especially when he or she has prior notice of an employer’s computer usage policy. A general consensus has emerged that in order to measure the employee’s expectation of privacy in his or her computer files and e-mail, a court should consider four factors:
1. Does the corporation maintain a policy banning personal or other objectionable use;
2. Does the company monitor the use of the employee’s computer or e-mail;
3. Do third parties have a right of access to the computer or e-mails;
4. Did the corporation notify the employee or is the employee aware of the use and monitoring policies.
This topic has received special attention when an employee communicates with his or her attorney during working hours and using company-supplied equipment. In most cases, courts have found that an employee does not waive the attorney-client privilege involving e-mails and texts sent to legal counsel. The greatest level of privacy protection has been afforded where the employees use his or her own personal service provider, AOL or Yahoo!, for example, instead of the company’s e-mail system.
However, courts are taking divergent views. For example, a federal court in Illinois found that an employee did not have any reasonable expectation of privacy in a laptop computer that had been furnished by the employer. The Court ruled that the laptop was the employer’s property and it could attach whatever conditions to their use it wanted to. Compare that to a recent New Jersey decision, which found that a policy imposed by an employer, purporting to transform all private communications into company property — merely because the company owned the computer used to make private communications or used to access such private information during work hours — furthers no legitimate business interest.
One court drew a distinction in this ongoing legal debate where the former employee worked primarily out of her home, and her laptop computer was not connected to the company network. The Court found that the employee did take reasonable steps to prevent inadvertent disclosure of attorney communications because she sent the e-mails through her personal AOL account. And, the Court also found that the company did not enforce its computer-usage policy, and this created a “false sense of security” that lulled employees into believing that the policy would not be enforced.
The scales of justice are actively tilting back and forth with the speed of Twitter. One important message is that an employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours. This is especially true when the company has adopted and distributed a computer usage policy. At the same time, the content of an employee’s personal communications are not open to unfettered scrutiny. In light of the variety of work environments, whether the employee has a reasonable expectation of privacy must be decided on a case-by-case basis. The Supreme Court’s decision later this year may give additional guidance to both employers and employees.
In order for an employer to have any rights to view or monitor an employee’s use of company-supplied communication equipment and computers, it is highly recommended that an “Electronic Communication and Computer Usage Policy” be adopted and implemented.