Privacy in the Workplace in the Electronic Age

One of your valued employees has just resigned. When you open the door to the employee’s now bare office, you realize that some client files seem to be missing. The employee has left behind his company-issued laptop. You ask yourself, can I look at his computer to see what he printed? Can I check to see if he used a flashdrive to take information? And you wonder, can I check his email?

These questions and the extent of an employee’s right to privacy, particularly in areas like email, are being tested by the increased use of technology in the workplace. Courts have recognized that under certain circumstances employers have the right to monitor and control the use of computers in the workplace. This includes the ability to review company computers to see if employees have improperly accessed or transmitted documents, such as to a competing business.

In fact, if litigation ensues in this type of situation, a court may even require the employee to turn over his home computer for inspection if the employer can show that the company’s information may have been transmitted to that computer. With certain safeguards in place, courts will allow the employer to check even these "personal" computers to find confidential information that was alleged to be transmitted electronically.

The Electronic Communications Privacy Act enacted in 1986 (ECPA) is the only federal statute that offers workers some privacy protections. The ECPA prohibits the intentional interception of electronic communications. However, the ECPA provides for two exceptions: an employer may monitor employee conversations if 1) the monitoring occurs in the ordinary course of business, or 2) with the employees' implied consent. These exceptions are interpreted broadly enough to enable employers to view employees’ email, and even listen in on employee phone calls, as long as they are not purely personal calls. Employers can also intercept communications to employees as long as there is actual or implied employee consent, which can be established if the employer merely gives notice of the monitoring – such as in an employee handbook.

The frequent use of technology underscores the need for employers to implement policies on the use of company computers and employees’ expectation of privacy. Employers should make sure that employees know the company’s policy regarding the use of company computers, including policies concerning emails and text messages. These policies should be tailored to the company’s business, and may also include an employee acknowledgement that they have read the policies. This helps employers argue that they are entitled to inspect and monitor the computer use of their employees.

In addition to implementing workplace policies regarding computer use, employers should enforce those policies when they suspect that the policy has been violated. Uniform enforcement protects employers from accusations of disparate treatment, and puts all employees on notice that violators will be disciplined. A well-communicated and enforced policy provides employers with the safeguards they need to retrieve data from an employee’s computer, including emails.

Fisher & Phillips LLP is a law firm representing employers nationally in labor, employment, employee benefits and immigration law. For an invitation to upcoming Breakfast Briefings and Webinars on Privacy in the Workplace and a variety of other labor and employment topics, please email or call Susan Guerette directly at sguerette@laborlawyers.com or 610-230-2133.