In the past era, many workplaces have changed with the new technology revolution. Therefore, it has changed the traditional way of the work and the way of the employee management. Misusing of Company property, low productivity, attacks, robberies, violence, workplace mishaps are the main reasons for this Monitoring case.
According to this, the increased risks and enhanced tools have caused in increased use of surveillance and monitoring and an increase in the pressure between employee privacy and employer’s management rights.
Both employers and employees are concerned with privacy issues of continuous monitoring. Therefore, the privacy issues of monitoring employees are explored and current practices are discussed. My report further provides suggestions, arguments and discusses different perceptions given by other researchers and writers for ethical, legal, social and professional issues. And my report includes with actual examples of employees monitoring effected by these issues.
Table of Contents
Executive Summary 3
1. Introduction 5
2. Privacy at the workplace 7
3. Reasons for Monitoring and Surveillance 8
a. Employee or Customer Safety 8
b. Workplace Liability and Investigations 8
c. Network and Systems Performance 9
d. Employee Productivity 9
4. Employee monitoring 10
a. Video surveillance 10
b. Computer monitoring 11
c. Spying 11
d. Eavesdropping and wiretapping 11
e. Undercover operatives 12
f. E- Mail monitoring. 12
g. Active badge systems 13
h. Social media monitoring 13
5. Ethical analyzing 14
6. Discussion 15
a. Legal issues 15
b. Social issue 17
7. Conclusion 18
8. Recommendations 19
9. References 21
With the modern technology evolution, employee monitoring has become a controversial in the world in last era. After this development, it has changed the traditional way of the work and the way of the employee management. Misusing of Company property, low productivity, attacks, robberies, violence, workplace mishaps are the main reasons for this Monitoring case. According to this, the increased risks and enhanced tools have caused in increased use of surveillance and monitoring and an increase in the pressure between the employee privacy and management rights of the employers.
Every employer of a company or an organization monitors the activities and behavior of their employees in their workplace. And every employee should accept this monitoring case about Professional, Ethical and Privacy issues in their workplace.
The privacy of the employee has become a debatable issue of Human Resource management field as the employer has more technologies. Computer terminals, GPS tracking, voice mail and monitor telephones are some of the available technologies.
In Office of Technology Assessment, 1987, p. 27, Electronic monitoring defines as “the computerized collection, storage, analysis, and reporting of information about employees’ productive activities”.
Through the use of this employee monitoring technologies, the company management is able to know whether their employees are given their work hours for the company or whether they are doing something else. This technology includes the use of software that will allow the employers to know the websites being accessed by the employee too. And it may include use of the cameras also. So the employer may be able to observe the every activity of their employees.
Mostly, the employees dislike to be monitoring and consider this as a hateful act that they even consider as a violation of their most precious rights and liberties. Employees don’t want their company to know what they are actually doing in all the time. They feel it like less freedom at the workplace and the employers are involving their lives much more it is violates their right to privacy.
However, employee monitoring in workplace is not simply a restriction of the liberties and rights of the employees. But its purpose is to ensure that the interest of the employer is protected against any and all behaviors of the employee during their work hours. Cause they have a right to know it.
2. Privacy at the workplace
Privacy, yes it is very important to every human being. Let’s see what is ‘Ability of an individual or group to keep their lives and personal affairs out of public view or to control the flow of information about them’, this is called as Privacy.
The Article 8 of the European Convention on Human Rights :”Everyone has the right to respect for his private and family life, his home and his correspondence.”
The Article 17 of the International Covenant on Civil and Political Rights of the United Nations of 1966: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.’
The use of E-mail, Internet, Telephones and policies of privacy at the workplace are become the part and parcel elements now. Basically, those policies are acts as a firewall that protecting the company’s resources being relevant to the Internet, Communication and Information technology. According to the requirements of the employers are develops their policies for employees. It is always depends on their requirements of their business, Information type and Communication methods etc. Those privacy issues are highly giving complete exactitude than other things where the core operations of the business are directly related to the personal information of employees and customers.
In the workplace, implemented the uses of Communication and Information technologies and privacy issues and in practice are organizational oriented and highly restricted that tightened the employees to use all the resources only for official use. To make those privacy issues in practical, there are highly dedicated server in place that strictly keep monitors each and every activity that does on the workplaces, that server has the highly dedicated and updated firewall that only give access to those websites and applications that are approved by the information security personnel. Therefore, employees are bound to use only company’s intranet and authorized websites. So they are not able to use public emails and internet for personal use such as social networks; Facebook, twitter.
Let’s see how this privacy issues are protecting by the employees, in their workplaces and what the employee monitoring one by one is.
3. Reasons for Monitoring and Surveillance
a. Employee or Customer Safety
Increasingly, attacks, robberies, violence, workplace mishaps, other workplace safety issues, and associated liabilities and damages provide motivation for employers to monitor the workplace. Remote worker monitoring systems are being used to monitor employees working alone or in isolation by using simple telephone and/or wireless technology with a standard computer workstation. Such systems can identify emergencies and guide response teams through a step-by-step emergency response. Deterrence, responsiveness and enhancing the ability to investigate are common objectives for use of monitoring measures.
b. Workplace Liability and Investigations
Potential legal liability resulting from employee computer misuse or misconduct is often a motive for employee monitoring. Incidents of harassment, safety and theft may trigger an investigation into such misconduct that may use monitoring or surveillance.
Racial and sexual harassment claims arising from racist or pornographic Web browsing or e-mails is not an uncommon occurrence. One law journal paper cited the following high-profile cases. Morgan Stanley, the Wall Street brokerage, was sued for US$70 million by employees because of racist jokes that were distributed on its e-mail system and allegedly created a hostile work environment. Chevron Corporation settled a $2.2 million lawsuit with employees who took offense to an e-mail about, ’25 Reasons Why Beer is Better than Women.’ Xerox Corporation dismissed 40 employees for sending or storing pornographic e-mail or looking at inappropriate web sites – some for up to eight hours a day – during working hours. The New York Times dismissed 22 people at a pension office in Virginia, for passing around potentially offensive e-mails, including some that allegedly included sex jokes and pornographic images. Dow Chemical Company dismissed 50 employees and disciplined 200 others for abuse of e-mail at one of its Michigan plants, which included off-color jokes, pictures of naked women, depiction of sex acts and violent images. Months later, Dow dismissed 24 workers and disciplined an additional 235 employees for the same misconduct at one of its Texas plants.
In 2001, Ontario’s Ministry of Natural Resources disciplined 66 employees, six of whom were dismissed for viewing, transmitting and storing pornography and other objectionable material. In 2003, the Yukon Government’s investigation into the same kind of misconduct implicated 542 employees and resulted in disciplinary action against 96 people.
c. Network and Systems Performance
Network performance is an important issue for businesses as a downed system can cost hours in lost productivity across the workforce, loss customers and revenue, and untold damage to reputation. Efficiency of the computer network is also an important factor in business productivity and performance. A major concern for employers is network bandwidth traffic, including slowdowns related to employees downloading, sharing and using large audio and video files, Internet surfing and high volumes of personal e-mail. These activities can also introduce viruses that may attack and disable a network.
d. Employee Productivity
As companies invest heavily in sophisticated PDAs, computers and software for employees, concerns over employee use of employer computer resources is a major motivation for employee monitoring. In 2000, the Angus Reid Group reported that Canadian employees spent about 800 million work hours each year on personal Internet use. The survey found that Canadian employees with Internet access at work averaged eight hours online per week, of which at least two hours were for personal reasons.
Another survey has claimed that 25 percent of employees admitted spending 10 to 30 minutes each workday surfing non-related work sites. A further 22 percent admitted spending 30 to 60 minutes each workday surfing nonrelated work sites. Astonishingly, 12 percent admitted spending one to two hours and 13 percent admitted spending more than two hours each workday surfing Internet sites unrelated to their jobs. Each of the above concerns can form a legitimate basis to monitor employees. Weighed against these concerns, however, are the privacy rights an employee may have.
4. Employee monitoring
Employee monitoring has become a major part to the employees in these days. In every workplace every employer should develop their company, gain their targets, profits through their way to success is must. So they should know whether their employees are working or not in their working hours. Employers are wishing to monitor the behaviors of the employees, performances, actually are they working, personal activities and restroom break etc.
Electronic monitoring is intrinsically no more invasive than traditional supervision. It is although never in origin. In today’s digital world, numerous employers are implementing employee monitoring software. On occasion, managers inform their staff that they are being monitored.
Employers use many methods to monitor their employees; Video surveillance, Computer monitoring, Spying, Investigators, Eavesdropping, Undercover operatives, Wiretapping, E- mail and Active badge systems are some of them.
Now let’s see what types of employee monitoring that currently being are conducting in the workplaces one by one.
a. Video surveillance
In the workplace employer use the video surveillance to monitor their employees’ activities, performances and behaviors through the cameras.
These cameras are placed in open and noticeable areas, while others may be installed secretly hidden. Mostly, employers are use tiny fish eye cameras because they will unnoticed after few days of the installation so employees are monitored by secretly, they do not know that they are present. But they provide very important surveillance information for the employers about their employees.
b. Computer monitoring
Computer monitoring is a system that monitors every work is gain with the computer by the employees. This system can check performance of the employee, spending time particular for those employees are involved in word processing and data entry, used to track the amount of time employees spend away from their computer or are idle at the terminal or to see what is stored in employees’ computer terminals and hard disks, Accessed websites as well as date, time, duration and frequency of visit, Online searches, File downloads and uploads, Software installations, The use of portable hard drives and other external media, Document printing, creation, reading, modification, copying, moving and deletion, Keyboard strokes, Sent and received email correspondence and attached documents, The transcripts of conversations that occur via chat or instant messaging applications, Usernames, passwords and account IDs, Launched applications, Screenshots of images displayed on computer screen.
This system allows management of the company to keep records of every employee performances, professional behaviors, aids in the appraisal review process and provides the information requirements to implement standards for performances of employees. Not only do this system allows employers to keep closer tabs on employees they also give employees access to information about their own performance, which they can then use to improve.
Spying is the next type of employee monitoring. This done when management or someone assigned by the management secretly observes other employees. Usually, other employees under investigation do not know what is going on.
d. Eavesdropping and wiretapping
Employers use eavesdropping and wiretapping as a common method in workplaces. Mostly, employees are using company telephone for make their personal calls. In this act employers may monitor calls with clients or customers for reasons of quality control. Employee, who answer telephone calls, all day are monitored in detail, which the exact number and duration of each call, and the idle time between calls, can go into an automatic log for analysis.
Employers may also use the monitoring of calls with clients to improve quality. The results of this method may assist employers and employees to serve customers better by determining when an employee needs additional training. It may also detect if any employee is giving critical information about the company to outsiders. Not every business is aware of this requirement, so employees’ calls might still be monitored without a warning.
e. Undercover operatives
In a workplace the communication, understanding and trustworthy between employer and employee is must. So employer should know about their employees, to gather information of the employees, they are using undercover operatives.
f. E- Mail monitoring.
Email has become the main communication method in the modern world because it’s simply and really private. But in the workplace which uses an email system, is not private, when the employees are using the mail system employer allowed to review all the activities. In this system Messages have sent, to where, the time and date, subject, content and everything can monitor by the employer. This includes web-based email accounts such as Gmail and Yahoo as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private.
E-mail systems retain messages in memory even after they have been deleted. Although it appears they are erased, they are often permanently “backed up” on magnetic tape, along with other important data from the computer system. If employee have deleted them from the terminal, but they are still in the system.
Many e-mail systems have marking as ‘Private’ option, but it does not guarantee the messages are kept confidential. An exception is when an employer’s written electronic mail policy states that messages marked “private” are kept confidential. Even in this situation, however, there may be exceptions.
g. Active badge systems
Active badges are given to the employees from their workplace that is a credit card sized badge that an employee wears on the outside of his or her clothing so movement can be monitored in a building using his or her unique ID. This badge is made with a small transmitting device and operating by a small lithium battery.
This transmitting device sensor distributes the workplace, pick up the signals from them and receives via a small network to located server. This server converts the transmitting signals to information that can access through the LAN.
Infrared sensors need to be placed in every room and corridor to track active badges as they move through a building. So employers can monitor their employees are available in the workplace or not. Through this system reduces telephone traffic, saves time, wasted journeys and saves cost of phone calls.
h. Social media monitoring
Many employers have social media policies that limit what employees can and cannot post on social networking sites about their employer. A website called Compliance Building has a database of social media policies for hundreds of companies. Employees should ask their supervisor or HR department what the policy is for their employer.
5. Ethical analyzing
When considering this workplace monitoring in ethically, we should discuss is this monitoring case good or bad? By the help of the ethical principles and theories analyze this.
Kantianism states that peoples’ actions must to be guided by moral laws, and that these moral laws are universal. Kant’ places a substantial importance on intention and states, ‘the only thing in the world that can be called good, without qualification is a good will.’ Kant established two categorical imperative expressions:
(1) Act only from moral rules that you can at the same time will to be universal moral laws.
(2) Act so that you always treat both yourself and other people as ends in themselves, and never as a means to an end.
According to the 1st expression, computer monitoring is unethical because if monitoring employees were ethical, then the proposed universal rule would be: ‘A person should spy on others to ensure his or her benefit.’ Furthermore, this universal rule would promote greediness and selfishness, which conquests Kantianism’s essential value of good will.
According to the 2nd expression, computer monitoring is wrong because employers are monitoring their subordinates as a means to earning a higher profit not as ends in themselves.
Through this all types of monitoring, employee’s privacy has been affected by employer in the workplace. But as a workplace employer should keep some regulations and privacy policies to maintain their company. An employer should monitor the activities of his employees that practicality demands. Employer believes that employee who knows that he is being watched and monitored by his employee is more likely to complete his work. Commonly employees do not devote the full 8 hours a day for company-related work, so employees are conducted to the task by their employer.
Let’s discuss what are the legal, ethical, professional and social issues of the workplace privacy?
a. Legal issues
As technologies advance, employees are seeing an increasing tendency for employers to take actions that limit their privacy. Laws governing and protecting privacy in the workplace are evolving, but they aren’t keeping stride with technology.
Protect from unreasonable publicity given to employee’s private life, prevent and detect crime, establish the existence of facts, avoiding indiscrimination and e-harassment, protect from unreasonable intrusion upon employee’s isolation and protect from appropriation of employee’s personal accounts/social networks/telephone conversation/voicemail are the situations that made a need to arise of these legislations.
When we are talking about the legal issues of workplace privacy, there are three main legislations. They are Electronic Communications and Privacy Act 1986, The Data Protection Act 1998 and Human Rights Act 1998
Electronic Communications and Privacy Act 1986(ECPA)was enacted to extend government restrictions on wire taps from telephone calls to include transmissions of electronic data by computer by the United States congress.
Title I of the ECPA protects wire, oral, and electronic communications while in transit. It sets down requirements for search warrants that are more stringent than in other settings. Title II of the ECPA protects communications held in electronic storage, most notably messages stored on computers. Title III prohibits the use of pen register and/or traps and trace devices to record dialing, routing, addressing, and signaling information used in the process of transmitting wire or electronic communications without a court order.
ECPA prohibits employers from intercepting e-mails, telephone calls, and faxes. But despite the general prohibitions of the ECPA, employers may generally monitor email and internet usage if the employee has consented to the monitoring. Consent is usually obtained by having the employee execute an acknowledgment of a computer and internet usage policy which makes clear that searches may occur, and that the employee has no reasonable expectation of privacy in the data stored on the office computer, or in any other communication medium. The policy should also make it clear that computers are to be used only for business purposes, and it should strictly prohibit unauthorized use of email or the internet for any other purpose, including but not limited to, downloading pornographic, offensive, or harassing communications, copyrighted or trade secret information, or any other non-business related information.
The Data Protection Act 1998(DPA) was enacted by United Kingdom law on the processing of data on identifiable living people. This is mainly legislation that governs the protection of personal data. When the employers are accessing the personal information of employee they should follow some data protection principles with this act. The act contains eight ‘Data Protection Principles’.
These specify that personal data must be:
1. Processed fairly and lawfully.
2. Obtained for specified and lawful purposes.
3. Adequate, relevant and not excessive.
4. Accurate and up to date.
5. Not kept any longer than necessary.
6. Processed in accordance with the ‘data subject’s’ (the individual’s) rights.
7. Securely kept.
8. Not transferred to any other country without adequate protection in situ.
Human Rights Act 1998 article 1 says, ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ And article 3 says, ‘Everyone has the right to life, liberty and security of person.’ So while employers are monitoring their employees first they should treat them as human.
According to this workplace privacy legislations, when employers are monitoring they should tell their employees about the monitoring areas and should avoid some places as restrooms and try to give the employees a little bit privacy when they needed.
b. Social issue
In the workplace there is no any execution for employee’s privacy. In this monitoring case employee’s privacy has been affected in the workplace because the employer is watching their employees every moment. So the employee feels less freedom at the workplace. And electronic monitoring systems are always giving pressure to perform for employee. These ranges of stressful working situations those related to monitoring such as heavy workload, repetitive task, employees have no time to relaxation.This is highly violates Privacy Rights of the employee. Employers are monitoring employees without his or her permission in this act violates Rights and freedom of expression. Within this issues employee can suffer physically and mentally disorders because of the tension. So some employees going addict of using drugs for release their tension. Finally it may cause for having problems with their family and society also.
Employee monitoring in the workplace is not a random and illegal act of the employer. Because the employers are considered liable for failure to enact policies that will prevent the employees from engaging in unethical and illegal act it is only rightful and just for the employers to be allowed to monitor the activities of their employees to restrict them from violating existing company policy. In the same manner, employers pay the employees for the entire work hours.
As such, it is the right of the employees to determine whether the employees are devoting their time for the company.
Employees might also think that management just focus on the revenue generation than to provide proper relaxation that is inevitable for mental health and that mental health is the catalyst for quality production.
These assumption and perceptions adversely affect on the employees’ performance and privacy that they are bound to act as robot and they even has not any room to have friendly discussion on general issues etc., the highly restrict policy might disturb the employee confidence in the level that even might think in the rest room and locker they will also be vigilance.
In this report, I have discussed about this issue in professionally, ethically, socially and legally.
Finally I should say the both parties, who employee and employer must be honest to each other.
Commonly we know employees are not devoting their full working hours for the official work, this is a critical issue. So employers should monitor their employees to gain success in the business world, it is really competitive and hard. Every employer should implement company regulations and policies for the employees for handle them in good manner. I have given some recommendations for handle this issue in good manner and make the workplace a better one.
1. To ensure the workplace technologies are being used correctly the employer should implement privacy policies and signed in the employees for an agreement. When the employers are monitoring email and internet, the employees should be informed that their individual Internet activities might be automatically logged by a network surveillance system and later reviewed by the employer for legitimate business purposes. Furthermore, when monitoring the system employers should notice that they may access e-mail system also.
2. Employers should remind employees that when they surf the Internet or use e-mail it’s holding the workplace’s domain address, they are representing their workplace not only themselves in a public medium. So employers can implement privacy concerns and legislations about this issue and furthermore, the employer has the right to install monitoring and filtering software to block out or limit access to specific websites.
3. Prevent misuse of official telephone employer can provide a separate phone for employees private usage same time the employer should limit the usage with conditions. Such as emergency calls only. Then the misusing will be decreased and it may be improve the relationship between employer and employee.
4. Employees should understand that anyone who uses e-mail inappropriately or who visits inappropriate websites is subject to discipline. When they are using workplace technology resources, they should use them only for the official use.
5. Employee should not misuse official telephones for their personal usage, if they want to ensure the privacy, their personal calls should made by their own mobile phone or a separate phone designated by their employer for personal calls.
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Privacy, Social Media and Employment Law: Balancing an Employer's Right to Know vs. Employee Privacy
© Bob E. Lype, 2011
Prepared in connection with the seminar, "Beyond the Basics in Employment Law," presented by Sterling Education Services, LLC in Chattanooga, Tennessee on January 27, 2011
Privacy in the workplace is a developing area of law. There are dozens of privacy-related considerations in the employment law setting, and many of the current issues being considered by courts, employees' lawyers and employers' lawyers are novel, so that guidance is somewhat scarce. These novel, developing issues include:
∙ Monitoring of employee communications or conduct at work (including e-mails, internet usage, telephone calls, text messaging, instant messaging, etc.)
∙ Monitoring, or making employment decisions based upon, employees' use of social media such as Facebook®, Twitter®, LinkedIn®, MySpace®, blogging, etc.
∙ Use of new technologies, such as global positioning systems (GPS devices), Google Maps®, and the like to "track" or monitor employee activities both while they are supposedly working and while they are away from work
The "internet," as we know it, was commercialized in the mid-1990s. However, in the last few years, there is a "second generation" of uses of the internet based upon what is commonly known as "Web 2.0" applications. These are applications which have made it easy for everyday folks to share information, collaborate, and interact on the World Wide Web almost instantaneously and inexpensively, through such things as blogs, Facebook®, video sharing sites such as YouTube®, microblogs such as Twitter®, and the like.
The conversational ease with which we can "post" comments, videos, rants, photos and the like through these Web 2.0 applications can cause us to say things "in the heat of the moment," or to use less discretion than we might use if we were writing a letter. In the employment law context, sometimes an employee might use a personal social media to express her personal feelings about a supervisor for the world to see. Sometimes the supervisor might post his gripes about an employee or group of employees. Sometimes such comments are sent out through the company's e-mail account. Sometimes a company's confidential or sensitive information, or even trade secrets, may be shared through a careless e-mail or "blast." There are a myriad of things which can "go wrong" with the use of the new technologies, from an employer's perspective.
In addition, most Web 2.0 applications allow for accounts which can be accessed from any computer with internet capabilities. This leads to employees accessing their social media sites while using their work-provided computers, or text messaging with their work-provided cell phones, etc.
The most frequently cited concerns for employers about these types of issues include:
∙ The drain on productivity caused by employees using social media and technology for personal reasons during work time
∙ The possible increase in malaware and viruses which may be introduced into the company's computer systems, since social media provides a massive platform for hackers to commit fraud and launch spam
∙ Damage to the company's brand and reputation resulting from poor decisions by employees which lead them to make unflattering, or even malicious, comments about the company or its employees
On the other hand, the use of Web 2.0 applications and social media can have certain benefits for employers, as well. These can include:
∙ Some customers, clients, vendors, etc. may be impressed when a company effectively uses these means to communicate, showing that the company is up-to-date and business savvy
∙ Social media may permit an expansion of the company's visibility in aid or marketing
∙ Social media may be an effective recruiting tool which will attract the interest of potential employees
∙ Because so much information is available in a public setting, companies may access the information to learn more about applicants and potential employees
∙ Social media can provide an excellent means of soliciting feedback from customers, clients, and even employees is a simple, cost-effective, and timely manner
There is a tendency to focus on the negative aspects of these new technologies in the workplace (and away from the workplace), but with the fast-paced developments and the seemingly limitless ways they can be used, employers and their attorneys should bear in mind that there can be a mixed bag of positives and negatives. They key for employers will be to learn how to minimize the negatives and maximize the positives.
A. WHOSE COMPUTER IS IT? MONITORING INTERNET AND E- MAIL.
"Why is beer better than women?" One answer: "Beer doesn't demand equality." It's an old, somewhat crude joke – and as you have likely heard by now, it cost Chevron Oil Company $2.2 million to settle a sexual harassment lawsuit in 1997. The lawsuit was brought by employees who alleged that Chevron had permitted its internal e-mail system to be used to disseminate sexually offensive content, such as this "joke." E-mail was still a fairly new tool in 1997, but publicity about the Chevron settlement gave employers a compelling reason to be interested in monitoring employees' e-mail usage. One recent study indicated that 70% of workers admitted having viewed or sent sexually explicit e-mails at work.
Studies show that more than 60 million Americans have e-mail and/or internet access at work. According to an ePolicy Institute study from 2004, 86% of workers who have work-provided e-mail use it for some personal use, including shopping, corresponding with family and friends, browsing news or personal interest sites, etc. In 2000, almost 50% of holiday purchases were made during business hours.
The most commonly cited reasons employers monitor e-mail and internet usage are:
∙ To reduce the risk of legal liability for sexual harassment, fraud, etc.
∙ To protect company assets (e.g., both to avoid introduction of harmful viruses and the like, and to prevent dissemination of confidential information)
∙ To prevent loss of productivity
Electronic Privacy Communications Act. The Electronic Privacy Communications Act ("EPCA")(18 U.S.C. §§ 2510 et seq.) protects most electronic communications, including e-mail, from interception, attempted interception, disclosure, and unauthorized access. Whether the statute applies depends upon the medium of the message, the system upon which the message is located, and whether the message is in transit or stored. Among the exceptions under the EPCA, there are three which would relieve an employer from liability for monitoring its employees' e-mails: (1) consent (which includes implied consent), (2) the "provider" exception (which applies when a company provides its own e-mail service or communications systems), and (3) the "intra company communications" exception (when the employer accesses stored communication files).
By way of example, in Fraser v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3d Cir. 2003), the terminated employee argued that his employer had improperly "intercepted" his e-mails which were stored on the company's central file server. The Court held that no "interception" had occurred under the EPCA.
Stored Communications Act. The Stored Communications Act ("SCA")(18 U.S.C. §§ 2701 et seq.) prohibits unauthorized access to stored electronic communications, giving a private cause of action for unauthorized access to stored data found on a computer's hard drive or e-mail servers. However, the SCA contains a "provider exception" which would apply to employer-provided accounts, equipment, etc.
General rule. It is generally well-settled than an employer may monitor an employee's use of company-provided e-mail systems, internet usage, and the like. The key consideration for the employer is to have a clear, clearly communicated policy which removes any reasonable expectation of privacy from the employee in connection with such use of company equipment or accounts, whether that use occurs at work or away from work.
If an employee decides to pursue a tort-type invasion of privacy claim based upon an employer's review of e-mails, the employee must establish some reasonable expectation of privacy in the communications. In the cases which have considered such claims, this has proved to be a very difficult thing for employees to so. See, e.g. United States v. Hassoun, 2007 U.S. Dist. LEXIS 3404 (S.D. Fla. Jan. 17, 2007)(in light of employer's written policies, employee had no reasonable expectation of privacy in his office computer or e-mail); Garrity v. John Hancock Mutual Life Ins. Co., 2002 U.S. Dist LEXIS 8343 (D. Mass., May 7, 2002)(employee had no reasonable expectation of privacy in folders marked "personal"); Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996)(no reasonable expectation of privacy in work e-mail, even in the absence of a written e-mail policy).
With regard to a common law invasion of privacy claim, the most frequent subset of invasion of privacy claims relied upon by employees is "intrusion upon seclusion." While Tennessee has not specifically adopted the "intrusion into seclusion" type of claim for invasion or privacy, the Tennessee Supreme Court seems to have implicitly conceded that such a claim may be cognizable in this State. See Givens v. Mulliken, 75 S.W.3d 383 (Tenn. 2002).
Recent lesson from the Supreme Court regarding reasonable expectation of privacy. In June, 2010, the United States Supreme Court decided a case in the context of a public employee (i.e., a police officer) who sent text massages via an employer-provided pager. The case was City of Ontario, California v. Quon, 130 S. Ct 2619, 177 L. Ed 2d 216 (decided June 17, 2010). While Quon involved a public employer, and while it involved text messages sent by pager, it is nonetheless instructive for all employers with regard to the reasonable expectation of privacy issue. In Quon, the police department supplied pagers which could send and receive text messages, but there was a monthly limit on the number of characters each pager could send or receive, with a resulting fee if the number of characters was exceeded. When Officer Quon and several other officers exceeded the monthly character limits for several months, the police chief reviewed transcripts of the text messages sent over a two-month period, in order to evaluate whether the existing character limits was too low, or whether the officers would need to pay the fee. It was discovered that many of Quon's messages were not work-related, and some were sexually explicit. The internal affairs division compared the dates and times of text messages to his work schedule, and he was ultimately disciplined for violating the department's rules.
Quon then filed a lawsuit alleging violations of his Fourth Amendment Rights (reminder: his employer was a governmental agency), as well as violations of the federal Stored Communications Act by the pager service provider. The question reviewed by the Supreme Court involved Quon's reasonable expectation of privacy.
The police department had a clear Computer Policy which pertained to e-mails, and which clearly stated that the department reserved the right to monitor and log all e-mail and internet use, with or without notice. On its face, the policy did not state that it applied to text messages sent via the pagers, and the Supreme Court noted that text messages are unlike e-mails in that they did not pass through the department's computer servers. However, in staff meetings the officers were told that pager messages "are considered e-mail messages," and that they "would be eligible for auditing." This was later confirmed in a written memorandum to officers. The Supreme Court had no trouble in deciding that the official policy of the department removed any reasonable expectation of privacy, for purposes of reviewing the reasonableness of the search under the Fourth Amendment claim.
However, there was more to the story. It turned out that Quon's supervisor had told Quon, the first or second time that he had an overage of characters, that "it was not his intent to audit an employee's text messages to see if the overage was due to work related transmissions," and that Quon could reimburse the overage fee rather than having any audit performed. Quon agreed and reimbursed the overage fee for several months, but the supervisor eventually "became tired of being a bill collector" and performed the audit.
Therefore, the Supreme Court had to consider whether these statements by the supervisor "overrode the official policy" and gave Quon the basis for a reasonable expectation of privacy? The Court then "punted" on the issue and stated that it would "assume arguendo" that Quon did have a reasonable expectation of privacy in the text messages. The Court was obviously wary about making any ruling on this issue which would be taken too broadly, noting:
Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve....
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.
A broad holding concerning employees' privacy expectations vis-a-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.
Quon, 130 S. Ct at 2629-2630 (internal citations omitted).
The Court then proceeded to issue its decision based upon the assumption that the supervisor's statements overrode the department's policies and did allow the officer to have a reasonable expectation of privacy in his text messages. This quasi-ruling by the Supreme Court may give employers some heartburn, because it seems to indicate that even a good, effective company policy may be overridden by a passing comment by a supervisor. Ouch!
On the other hand, the Supreme Court's ultimate ruling will likely be helpful to employers. It held that "because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable," for purposes of the Fourth Amendment claim. While the Court was careful and narrow in the rationale behind its ruling regarding the expectation of privacy, it went out of its way to broaden its ultimate holding to include the private employer context, stating, "the Court also concludes that the search would be 'regarded as reasonable and normal in the private-employer context....'" 130 S. Ct at 2633 (emphasis added).
Therefore, for private employers, the Quon decision teaches:
∙ An employer's computer-usage and e-mail policies can be expanded to cover other applications, such as text messages, by follow-up clarifications and memoranda
∙ The computer-usage and e-mail policy can remove any reasonable expectation of privacy by the employee
∙ Passing comments by a supervisor may reinstate the reasonable expectation of privacy
∙ But monitoring of the e-mails, text messages and the like by a private employer may still be regarded as "reasonable," so long as it was (1) motivated by a legitimate work-related purpose, and (2) not excessive in scope
What about web-based e-mail accounts or "webmail"? Most decided cases involve employees' use of e-mail via accounts provided by the employer, using the employer's e-mail servers, etc. What about when an employee has, and uses, a personal, web-based e-mail account (such as a Yahoo® account, or a GMail® account, or an AOL® account) when the employee is at work?
The Electronic Communications Privacy Act (referenced above) would not apply to interception of web-based e-mail by an employer because no "interception" occurs, since the e-mails never touch the employer's server, but instead merely traverse the employer's network to and from the web-mail provider's server. However, it is less certain whether the Stored Communications Act (referenced above) might apply.
There is a scarcity of case-law and authorities addressing the monitoring of employee's personal web-mail accounts by an employer. In one case which addressed this question, Fischer v. Mt. Olive Lutheran Church, 207 F. Supp. 2d 914 (W.D. Wis. 2002), a senior pastor overheard a telephone conversation by a children's pastor which seemed to indicate possible homosexual relationships. The senior pastor sent the children's pastor home, then hired a technology consultant to examine the church's computers. The children's pastor had a password-protected Hotmail® account which had been accessed through the church's internet connection. The senior pastor was able to guess the password, and the consultant accessed the personal Hotmail® account on multiple occasions, and eventually the children's pastor was terminated. He sued and asserted a common law invasion of privacy claim, as well as a claim under the Stored Communications Act, arguing that his e-mails had not been accessed from employer-provided servers, but rather from a remote, web-based server owned by Microsoft. Unfortunately, the Fischer court never definitively answered the question whether there was a violation of the SCA, but it gave an indication that it believed the legislative history behind the SCA showed that the actions in that case should have been covered by the Act. The Fischer court also denied that the defendant was entitled to summary judgment on the invasion of privacy claim.
More recently, in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, Inc. (S.D.N.Y., decided December 22, 2010), the Court considered a similar situation. Employees of a gym had signed non-compete agreements, but they decided to set up a competing business. The employer filed a lawsuit based upon the non-compete agreements, using as evidence 546 e-mails from the employees' Hotmail and GMail accounts which showed that the employees had taken customer lists and training materials, as well as solicited customers. But how did the employer get access to the e-mails? It turned out that the computers the employees while working for the employer "auto-stored" the user-name and password fields, so the employer simply logged on as the employees. The employees, who had obviously done something improper, counter-sued the employer for violations of the Stored Communications Act, and the Court agreed that violations had occurred. Moreover, even if the employees had not sustained actual damages, they were awarded $1,000 as statutory damages per violation. The employees wanted the Court to find 546 separate violations, but it instead found that due to the proximity in time of the access to the e-mails, there was only one violation. Still, the lesson to employers is that accessing web-based e-mail accounts may lead to SCA claims.
B. WIRELESS DEVICES AND EMPLOYER AND EMPLOYEE PRIVACY VIOLATIONS.
"Wireless devices" is a broad term, which can include communications by cellular telephones, instant messaging and text messaging via cellular telephones, and similar types of communications. It can also include other types of technologies, such as personal digital assistants (PDAs), global positioning system (GPS) units, and other such technologies. "Wireless" refers to the use of energy sources to transfer information, including radio frequencies, infra red lights, laser lights and "acoustic energy." Wireless communication includes the communications between a television set and a remote control, or permitting a computer to make an internet connection via "Wi-Fi," or BlueTooth® connections. "Wireless" is not necessarily a synonym for "cordless."
Text messaging and similar "wireless" communications. Employee communications by wireless devices can include text messaging, cellular telephone conversations, instant messaging and e-mails sent via wireless devices such as Blackberry® phones. A 2008 Nielsen study showed that U.S. wireless subscribers now send and receive more text messages than mobile phone calls. A 2007 survey showed that 19% of "smart phone" users worked more than 50 hours per week, and one-third believed that their smart phones "enslaved them to their work."
Employers are learning that they can face liability because of text messages and instant messages, just as they learned about e-mails over the last decade. In one case, a company employee received a sexually explicit text message from her boss's phone at 2:00 a.m. The boss denied sending the message, claiming that a friend used his phone that night without telling him. Nonetheless, the company paid a $50,000 settlement. In another example, Central Michigan University paid a $450,000 settlement to two soccer players because of alleged sexually explicit text messages sent by their coach.
With regard to expectations of privacy and an employer's right to monitor text messaging and other forms of wireless communications sent via company-provided cellular telephones and similar technologies, the generally accepted "rule of thumb" remains the same as with regard to computer and e-mail monitoring – employers should have a clearly communicated policy which removes any reasonable expectation of privacy by the employee, and then, employers should have the right to monitor such communications. Of course, having the right to do so does not necessarily make this a prudent course in all cases.
The most recent guidance regarding monitoring text messages and similar communications comes from the 2010 Supreme Court case of City of Ontario, California v. Quon, discussed above. As is discussed above, Quon provides the following guidance for employers:
∙ An employer's computer-usage and e-mail policies can be expanded to cover other applications, such as text messages, by follow-up clarifications and memoranda
∙ The computer-usage and e-mail policy can remove any reasonable expectation of privacy by the employee
∙ Passing comments by a supervisor may reinstate the reasonable expectation of privacy
∙ But monitoring of the e-mails, text messages and the like by a private employer may still be regarded as "reasonable," so long as it was (1) motivated by a legitimate work-related purpose, and (2) not excessive in scope
Reminder to Tennessee employers: no texting while driving law. Tennessee employers should also be mindful that Tennessee has passed legislation which prohibits texting while driving. The law is codified at Tenn. Code Ann. § 55-8-199. If an employer provides a cellular telephone to an employee who drives during the course of employment, the employer should adopt and communicate a clear policy prohibiting texting while driving, both for the safety of employees and others, and also to create at least an argument for a defense against respondeat superior liability following an accident caused by an employee texting while driving on company business.
Other wireless device concerns: GPS and RFID technology. Besides the more obvious examples of wireless devices (smart phones, text messaging, etc.), there are at least two new forefront issues for employers involving wireless technologies which impact employee privacy concerns. They involve the application of new technologies by employers in new and unique ways – so new, in fact, that there is virtually no specific legal guidance on their part to date. However, employers and their attorneys should be aware of the new technologies and the potential employment-related legal claims which will almost certainly follow. The two technologies are "global positioning system" (GPS) technology and "radio frequency identification" (RFID) technology.
Creative employers have begun to see new applications for GPS technology, which uses satellites to communicate with devices on the ground to determine the device's exact location at any given point in time. Some of the new applications include tracking the whereabouts of employees who travel as part of their job, as well as logging driving for purposes of "time worked" and avoiding unauthorized overtime, and disciplining employees for unauthorized deviations and unproductive activities.
To date, only a handful of legal challenges by employees have resulted in lawsuits against employers based upon the use of GPS technology, and thus far, it does not appear that any employee legal challenges have prevailed. In Elgin v. St. Louis Coca-Cola Bottling Co., 2005 U.S. Dist. LEXIS 28976 (E.D. Mo. 2005), the employer tracked an employer-owned vehicle assigned to the plaintiff during both working and non-working hours, and the employee had not been informed ahead of time about the practice. He sued for invasion of privacy and "intrusion upon seclusion," but his claim was dismissed because the court found that the use of the GPS to track the location of the company car did not constitute a substantial intrusion upon his seclusion, "as it revealed no more than highly public information as to the van's location." Likewise, in Girardi v. City of Bridgeport, 985 A. 2d 328 (Conn. 2010), the employer (i.e., the City) had installed a GPS device in a City-owned vehicle driven by a fire inspector, without the employee's knowledge. Information collected from the GPS device was used to discipline the fire inspector for poor job performance. Connecticut had a statute which prohibited an employer from electronically monitoring an employee's activities without prior notice, and the employee filed a lawsuit based upon the statute. The Connecticut Supreme Court held that the statute did not create a private right of action, and it also held that the employer had not violated the employee's expectation of privacy because the GPS unit did not provide any further information than could have been obtained through visual surveillance of the public roads.
RFID technology is similar to GPC technology, in that it involves "tracking," except that it tracks by radio frequency. In business, RFID is used to track sales, monitor inventory, and prevent theft. (Think of the "tags" which must be removed from clothing you purchase at a store before you exit through the "sensor" doors). RFID has been used in medicine to obtain vital information from patients who cannot communicate, such as Alzheimer's patients, by implanting transponder "tags" (sometimes called microchips) the size of a grain of rice under the skin. Can you imagine the ways an employer might utilize this technology?
Actually, some employers are already utilizing RFID technology with employees, such as by issuing identification cards which allow the employee access into parking lots, buildings and rooms; or the "EZPass" system which allows employees to pass toll gates on toll roads without stopping. This same technology also allows employers to determine the time an employer passed through the toll gate. But would any employer dare to suggest implanting a "tag" underneath the employee's skin – and would any employee ever go along with that? In 2006, a Cincinnati company gave employees the "option" of receiving such tags, but it also conditioned employer access to certain areas of its premises to having such a tag.
Even without subcutaneous tagging, employers can and do still utilize this technology with employees with such items as company-provided credit cards, parking cards, cell phones, etc. Until legal precedents and authorities are developed, we may assume that the legal analysis would be much the same as with regard to GPS technology. However, if employers begin requiring under-the-skin tagging, expect new legal arguments and new legal implications.
C. MONITORING AND CREATING POLICIES REGARDING ELECTRONIC COMMUNICATIONS.
The first and most important thing an employer should do regarding its plan to monitor employees' communications and technology use is to provide notice to the employees. As the Court stated in U.S. v. Bailey, 272 F. Supp. 2d 822,835 (D. Nebraska 2003), "an employer's notice to an employee that workplace files, Internet use, and e-mail may be monitored undermines the reasonableness of an employee's claim that he or she believed such information was private and not subject to search." Adequate notice removes the employee's claim of any reasonable expectation of privacy.
Such notice also serves the ultimate purpose of the employer's monitoring policy – altering employee's behavior. In addition, when an employer provides notice of its policy with an explanation of the legitimate business interests which lead to the need for the policy, then any stigma that the employer is "spying on its employees" can be removed.
If an employer already has an existing electronic communication and/or monitoring policy, it should review the policy to ensure that it extends to all forms of electronic communications. This is one of the lessons from the Supreme Court's 2010 Quon decision. As a reminder, the employer's policy in Quon covered e-mail communications, but as originally written, it did not cover text messages. However, the employer provided both verbal and written notice that text messages would be treated the same as e-mails, which worked in the employer's favor.
In addition, in another lesson from Quon, an employer should ensure that there are no "informal policies" in place which would undermine the written policies. In Quon, a supervisor had verbally re-assured the employee that his text messages would not be monitored, so long as he paid the monthly text message overage fee. The Supreme Court "assumed" that the supervisor's statement created a reasonable expectation of privacy on the part of the employee in his text messages. Employers should educate their supervisors regarding the electronic communications policies, and they should instruct supervisors to not make any statements, promises, etc. inconsistent with the policies.
One commentator has summarized the following key principles to be included in an employer's policy: (1) have a formal written policy and distribute it to all employees; (2) use the policy to inform employees that e-mail and other employer provided hardware are for business use only; (3) enforce the policy to avoid creating an informal expectation of privacy through lack of enforcement; (4) prohibit offensive or sexually explicit material; and (5) include all forms of electronic communications in the policy. See Alper, "Managing the Electronic Workplace," 36th Annual Institute on Employment Law 2007.
D. THE USE OF SOCIAL NETWORKING SITES IN THE EMPLOYMENT CONTEXT.
1. Employer Risks With Using Social Networking Sites for Employment Decisions.
"Social networking" sites can include Facebook®, Twitter®, LinkedIn®, MySpace®, and other similar sites. These sites serve as all-purpose platforms for on-line networking. Users create a profile which includes a variety of personal and professional information (e.g., date of birth, education, employer, marital status, employment history, expertise, awards), and then the users invite others to join their networks. Users can also contact others within the networks of their contacts, expanding their on-line connections.
Users of social networking sites can also share information through various "channels" of communication, including messaging, video file sharing, discussion forums, and blogging (short for "web logging").
For those seeking employment, social networking sites can serve as a useful tool to complement the more traditional job-seeking efforts. For example, LinkedIn® claims to have 8.5 million professional users from 150 industries across the globe.
Employers have also begun to use social networking sites in efforts to recruit candidates for employment. According to one source, roughly half of employers in the U.S. are using internet searches to "vet" job candidates. Employers can search sites for individuals with skill-sets and experience which matches job openings. This includes the ability to locate "passive" job candidates, i.e., those who might be interested, but are not formally looking for a job opportunity.
Employers also have begun to use social networking sites as a part of their background checks on applicants. There is a wealth of information which can be "mined" from an applicant's various social networking sites, which can include job attitudes, political affiliations, age and marital status. "Vetting" through reviewing social networking sites can also expose those who would lie or cheat to get a job. According to one source from 2006, 44% of job applicants lied about their work histories, 41% lied about their education, and 23% falsified credentials or licenses. But should an employer use social networking as part of a background check? What are the legal risks?
Because information posted on internet sources is generally considered public, and because information posted on web page "profiles" generally consists of voluntary disclosures, employers are not generally restricted from accessing such information. However, employers should be aware of two important caveats: (1) authentication – everything located on the internet is not infallibly true and correct; and (2) an employer cannot use information gathered in this manner to screen out applicants based upon membership in protected classes, such as racial groups, ethnic groups, religious persuasions, etc. Finally, because review of candidate profiles on social networking sites is likely to retrieve isolated bits of personal information, the employer who utilizes such a search risks making judgments out of context.
2. Best Practices and Policies to Minimize Employer Risk.
To minimize the risk of a discrimination-type claim on account of "screening" applicants through a review of social networking sites, there are various things an employer can do. The "safest" way an employer can utilize social networking information in this manner is to obtain the applicant's consent and only conduct the review after a conditional job offer has been extended. However, in the real world, few employers are willing to wait until that point before mining the publicly-available data.
Another best practice for employers in this regard is to avoid relying exclusively, or almost exclusively, on the results from any social network review in making any employment decisions.
In addition, employers should clearly train their managers, and all persons who may be involved in the review and/or decision-making process, of the legal obligation to avoid gathering any information about membership in any protected class, or any information which might tend to disclose an applicant's or employee's medical conditions.
Finally, employers should consider working with their IT personnel to come up with a way to verify and confirm what information has been accessed. While a "scout's honor" system might work, a better plan would be to come up with some analysis of web logs which shows which sites were accessed, on which dates, by which computers. Then, so long as the supervisors conducting the searches and reviews understand and honor the company's policies, there will be objective evidence to support, and hopefully to defeat, a claim by a disgruntled, unsuccessful applicant.
E. OFF THE JOB BEHAVIOR, E.G., BLOGGING, FACEBOOK AND DATING.
Facebook and blogging. As is noted above, there are millions of Americans who regularly use Facebook® accounts, write web logs or "blogs," etc. Any American employer of any appreciable size is bound to have multiple employees who use these outlets to express their frustrations, to tell funny anecdotes, to spread some amount of gossip, etc. Often the gripes involve supervisory employees, or the funny anecdotes and rumors involve co-workers. What can, and what should, and employer do with regard to such behavior?
Employers can be pretty savvy. Consider the soon-to-be Cisco employee who posted the following "tweet" on Twitter®: "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." A Cisco supervisor saw the "tweet" and tweeted back, "Who is the hiring manager? I'm sure they would love to know that you will hate the work. We here are Cisco are well versed in the web." The job offer was rescinded shortly thereafter.
The tensions regarding these matters are between an employer's business interests and an employee's or applicant's privacy and rights of personal expression. A 2009 study showed that 12% of employers monitor "the blogosphere to see what is written about it," while 10% of employers regularly monitor social networking sites to see what is being written about them. Frankly, these figures seem low.
There is little data to show how many employees have been terminated for blogging-type activities or posts on social networking sites like Facebook. However, there are at least some examples of it, and in fact, there is a term which has been coined to describe this – "dooced." The term comes from the real-life example of the termination of an employee named Heather Armstrong after her supervisor saw a personal blog – located at www.dooce.com – which contained satirical comments critical of management.
A handful of states have enacted legislation which limits the rights of employers to take employment actions based upon such off-duty conduct as blogging and Facebook posts (California, New York, Colorado, Montana and North Dakota).
Even in states where no such statutes have been enacted, employers could face legal liability for employment decisions based upon off-duty blogging or Facebook posts, such as: (1) if the employee blogs or posts about status in a protected class, or a medical condition, or a religious belief – employment decisions could lead to a discrimination claim; or (2) if the employee blogs or posts about alleged harassment or discrimination at work – employment decisions could lead to a retaliation claim; or (3) if the employee "whistleblows" about alleged company wrongdoing – employment decisions could lead to a retaliation claim, or possibly a Sarbanes-Oxley type whistleblower claim.
On the other side of the spectrum, employers could be held liable and responsible for certain communications by their employees, even if the communications occur away from work. For example, if an employee of a publicly traded company revealed non-public information about the company's financial forecasts through a blog or post, the employer could be held liable under securities laws.
Discovery issues. One developing topic for employers and their lawyers is whether information posted or available through blogs, social networks sites, etc., is subject to discovery in litigation? While the Rules of Civil Procedure have been amended to address "e-discovery," those rules are not always applicable to information contained on social networking sites, since the data in question does not "reside" on the servers or computers of the litigants. In addition, there are likely to be arguments about the relevance, as well as the admissibility, of any evidence obtained from such sites. Would a person's "friendship" status have any legal significance to a lawsuit? In Quigley Corp. v. Karkus, 2009 U.S. Dist. LEXIS 41296 (E. D. Pa. 2009), this question arose in the context of a securities claim and a shareholder's failure to disclose this "relationship." The Court held that "[f]or purposes of this litigation, the Court assigns no significance to the Facebook 'friends' reference . . . ." However, the litigation still involved discovery issues related to the Facebook status. In Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 U.S. Dist. LEXIS 2379 (D. Nev. 2009), the plaintiff alleged that she had been sexually harassed by her employer, and the employer sought discovery of private messages sent by the plaintiff through her MySpace account to impeach the plaintiff's credibility, because the company believed the messages would show that the plaintiff was involved in an extramarital affair. The court in that case did not permit the "fishing expedition" discovery to proceed, because it was not directly related to plaintiff's employment.
In a recent case, EEOC v. Simply Storage Management, LLC, 2010 U.S. Dist. LEXIS 52766 (S. D. Ind. 2010), the court permitted an employer to obtain discovery of an employee's social networking activity on MySpace and Facebook, even though the employee's "privacy settings" had been made "private" and not available to the general public.
Pending case regarding Facebook posts. Finally, employers and their attorneys should be aware of a ground-breaking, pending case before the National Labor Relations Board, which is scheduled for hearing on January 25, 2011. The case is American Medical Response of Connecticut, Inc. v. International Brotherhood of Teamsters, Local 443, Case No. 34-CA-12576 before the National Labor Relations Board. The issue of the case involves whether an employee may be disciplined or terminated for making negative comments about her supervisor in posts on her private Facebook account, from her home computer.
In American Medical, the employer is an ambulance service provider, and the employee was an emergency medical technician who was fired for violating a company policy which prohibited employees from "depicting the company in any way" on Facebook and other social media sites on which employees made posts about themselves. The employee was asked by her supervisor to prepare an investigative report concerning a customer complaint about her work. She asked for representation in that process from her union, which was denied. Later that day, from her home computer, the employee made some negative comments about the supervisor on her personal Facebook, which drew supportive responses from several co-workers. The employee was then suspended, and later terminated, on account of violations of the company's internet policies.
The NLRB investigated and found that the employee's Facebook postings constituted "protected concerted activities" for the purpose of "mutual aid and protection," and that the company's policies unlawfully interfered with and restrained employees' rights under the National Labor Relations Act in the free exercise of their right to engage in protected concerted activity, including communicating with each other about working conditions and the terms of employment.
The NLRB's general legal counsel has said that "whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that."
And now for a key point – obviously, the employee in American Medical was a union member and the complaint arose in the context of union representation. However, the NLRB restriction against policies which interfere with or restrain employees from protected "concerted activities," such as discussing working conditions, generally apply to all employers, and not just to employers with a union workforce. Therefore, all employers should monitor the results of this pending case, and they may need to review and revise their internet policies.
Soon we will know the outcome of this case. Meanwhile, employers and their lawyers should bear in mind that policies which "chill" co-workers from discussing working conditions and supervisors, including on social networking sites, may violate the "concerted activity protections" under the NLRA which apply to both union and non-union work settings.
Dating and other out-of-work activities. The National Institute of Business Management suggests a "litmus test" for employers in deciding whether to "police" an employee's off-duty conduct: "If an employee's off-duty conduct puts your company in legal or financial jeopardy, courts will be more willing to let you regulate it." Of course, this is not a definitive legal standard.
There are a myriad of examples of off-duty conduct which might clash with the interests of the employer. A sampling of examples, together with a sampling of how courts have viewed the employer actions, includes:
∙ Dating and/or sexual relationships (e.g., a company terminated an executive after he attended a convention with a woman who was not his spouse in Staats v. Ohio Nat'l Life Ins. Co., 620 F. Supp. 118 (W.D. Pa 1985); an employee was terminated due to inter-racial dating in Adams v. Governor's Comm. on Post-Secondary Education, 26 Fair Empl. Prac. Cases (BNA) 1348 (N.D. Ga. 1981))
∙ Sexual orientation
∙ Civic/political activities
∙ Leisure activities
Sonne, "Monitoring for Quality Assurance: Employer Regulation of Off-Duty Behavior," 43 Ga. L. Rev. 133 (Fall, 2008) lists several examples of employer actions based upon off-duty conduct (internal citations omitted):
∙ In the early twentieth century, Henry Ford was notorious for creating a "Sociology Department," which was "responsible for ferreting out immoral and undesirable behavior on the part of Ford employees" both on and off the job site.
∙ In the 1990s, retail giant Wal-Mart Stores, Inc. maintained a policy barring a "dating relationship between a married associate and another associate, other than his or her own spouse."
∙ In the summer of 1999, Arizona's Scottsdale Healthcare fired two nurses for violating a policy against "immoral or indecent conduct while on or off duty" by running a sexually explicit website.
∙ Around January 2003, Weyco Inc., a mid-sized administrator of medical benefits, announced that "it would no longer hire smokers and told current employees who smoked that they had 15 months to quit."
∙ In May 2003, a Budweiser beer distributor apparently terminated an employee for his public drinking of a beer produced by its arch-rival, Coors, while a similar incident occurred in 2005 when a Miller beer distributor's employee drank a Budweiser.
∙ In January 2006, Gannett Co., a large publishing company, "added a $ 50 a month surcharge to the health premiums of its employees who smoke." PepsiCo charges smokers $100 more per year
∙ In May 2007, the Olive Garden restaurant terminated a supervisor "after she posted photos of herself, her [underage] daughter, and other restaurant employees hoisting empty beer bottles" on MySpace.
There are simply too many cases, and too many examples, to discuss in this article and seminar materials. The general approach has been to uphold employers' decisions in most instances based upon the employment at will doctrine. Employees have advanced a number of arguments and claims, with varying degrees of success, including claims based upon invasion of privacy, constitutional principles such as freedom of association, public policy arguments, and tort claims such as intentional infliction of emotional distress or outrageous conduct. Commentators have suggested a host of approaches to these issues.
At present, because of the "mixed bag" of claims, issues and results, employers are best advised to seek legal counsel before implementing any decisions, policies or approaches based upon off-duty conduct by employees. Each situation should me measured in a case-by-case approach.
View all articles by Bob E. Lype