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What Employees Must Know About Monitoring of Electronic Communications

Many employers provide company laptops and company phones to their employees, for professional use. Employees often use the company laptop and phone for both personal and work-related communications. Combining personal and work email accounts into one inbox is also not unusual, thereby blurring the boundaries between personal and work-related communications.

What hazards should employees be aware of, then?
Let’s say an employee decides to resign or is terminated from his or her job. The employee will be required to return the company laptop and company phone. Employers routinely use computer forensics professionals to determine what was on these devices, and even retrieve what was deleted. These professionals also can determine what documents the employee transferred in and out of these devices. If the employer ‘learns’ that the departed employee has taken proprietary information or solicited clients (thereby contravening company policies, handbooks, or any employment contracts), then legal action could be taken against the employee. Defending such an action could not only be very costly financially, but could also damage future employment prospects.

When it comes to analyzing whether employers can monitor personal emails and messages on computers and phones, New York currently has legislation pending before the NY State Assembly, as to requiring employers to provide notice before conducting electronic monitoring.

For now, employees should conservatively operate under the understanding that the employer has the liberty to monitor communications on its computers, servers, and electronic devices provided to employees to perform work-related tasks. Employees should avoid using their work computers and company laptops to look for a job, or respond to job listings—if the employer finds the employee is conducting a job search on company time, that could give the employer legitimate grounds to fire the employee. It goes without saying that the workplace email should not be used during the job search.

Employees may ask—what if they use their private email accounts from the company computers, servers, and electronic devices-can the employer access them? The Stored Communications Act (SCA) makes it unlawful to access without authorization a facility through which electronic communication service is provided and thereby obtain access to communications in electronic storage.

With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail, Hotmail, aol, etc., the most frequent scenario confronted by courts is one in which a former employer accesses the web-based email of a former employee, looking for evidence of wrongdoing. In these cases, the former employer is typically able to access the former employee’s web-based email account because the employee has saved her username and password on a device provided by the employer, which was returned at termination, or failed to delink an account from such a device. In these cases, courts have been reluctant to punish the former employee for failing to take appropriate steps to secure their own private communications.

A New York federal district court considered an employee’s claim that his former employer’s review of emails in his Hotmail account after his termination violated the SCA because it was unauthorized. The former employer argued that its review of the emails did not violate the SCA because the employee had implicitly authorized its review of the emails on his Hotmail account because the employee had stored his username and password on the employer’s computer system or forgot to remove such an account from an employer-provided phone before returning it. The court rejected the former employer’s argument, holding that it was tantamount to arguing that, if the employee had left his house keys on the reception desk at the office, he would have been implicitly authorizing his employer to enter his home without his knowledge. The court also noted that the employer’s computer usage policy did not provide the necessary authorization because it only referred to communications sent over the employer’s systems.

A New York state court ruled in a case with similar facts, that if the employee’s private email account was hosted on a third-party owned server, and not saved on company equipment, then the former employer did not have authorization to access the employee’s personal email account. The takeaways? Try to avoid doing any personal emails using workplace equipment—and don’t save any emails on company equipment. And since emails cannot be destroyed, in light of technological developments, deleted emails that are later retrieved containing information compromising to the employee, can result in offers of severance pay being withdrawn, or legal action being taken against the employee.

Can monitoring and/or retrieval of an employee’s emails ever turn out to be in the employee’s favor? Yes. Texts and emails from managers or co-workers can support an employee’s allegations of sexual harassment, or other types of discrimination. They can also prove that an employee lodged complaints concerning unlawful conduct, with the company. Still, if the employee fails to keep copies (printouts or photos) of the evidence of discrimination in a safe place outside of the workplace, and the employee is fired, it can be costly to obtain electronic discovery of the ‘disappeared’ emails- after the employee brings a lawsuit.

Armed with the information in this blog, employees would do well to avoid using company computers and laptops for anything other than to perform the duties of their job.