Some surprising lawsuits involving privacy in the workplace...

Shoars vs. Epson
An employee was fired for refusing to participate in her supervisor's monitoring of employee e-mail. She sued for wrongful termination, relying on a California state law that prohibits electronic surveillance. The court held that the statute's protections did not extend to e-mail.

Bourke vs. Nissan Motors Corp
Nissan fired an employee for sending personal messages (some containing sexual content) through the company e-mail system. Bourke sued for wrongful termination, claiming invasion of privacy. The court denied his claim on the grounds that Bourque had no reasonable expectation that his E-mail was private.

Smythe vs. The Pillsbury Co.
A Pillsbury employee was fired after the company intercepted "inappropriate and unprofessional comments" that the employee had made to his supervisor over the company e-mail system. The Pillsbury Company had repeatedly assured its employees that all e-mail communications would remain confidential and privileged, and that it would not intercept e-mail or use it as grounds for termination.
Smythe was still fired and the court backed Pillsbury.

Huffcut vs. McDonald's
McDonald's employee Michael Huffcut began an extramarital affair with an assistant manager at a McDonald's in a neighboring town.The couple left messages of a sexual nature on each other's voice mail, which was part of a system linking a dozen franchises. A McDonald's manager retrieved the couple's messages and played them to Huffcut's wife and his boss. The multi-million dollar case is still in litigation.M

In Bohach vs. City of Reno
Reno police officers sent messages to one another over the Reno Police Department's message system. Faced with an internal affairs investigation based upon the contents of the messages, the officers filed suit. They alleged that the storage of the messages by the Department's computer network and the subsequent retrieval of those messages from the computer's files constituted, among other things, violations of the Electronic Communications Privacy Act. The officers were overruled.

Technology Law
E-mail's popularity poses workplace privacy problems

Steven Miller

Electronic mail messages are fast becoming the communications vehicle of choice for much of corporate America.

E-mail is in use, in some capacity, in all Fortune 1000 companies, and it is expected that by the year 2000, 40 million e-mail users will be sending 60 billion e-mail messages a year.

While the efficiency and practicality of e-mail is a major benefit to most businesses, e-mail is not without its problems. For instance, can an employer legally monitor e-mail, and if so should it monitor e-mail? What impact does an employee's unscrupulous use of employer-provided e-mall have on the employer?

What role will e-mail messages play in litigation? These are just a few of the questions that all employers should consider.

The Federal Electronic Communications Privacy Act of 1986 generally prohibits the interception of electronic communications, including e-mail. However, three major exceptions to the ECPA may allow the interception of employee e-mail.

First, an employer can monitor employee e-mail where the employee has consented to monitoring. Consent can either be express, where the employee actually agrees to the monitoring, or implied, where the employee continues to use the employer's e-mail system after being expressly informed that the employer intends to monitor e-mail.

It also states that the provider of electronic communication services is free to monitor communications when the monitoring is a necessary incident of the rendition of services or the protection of the rights or property of the provider.

The Electronic Mail Association has interpreted this exception to allow an employer to monitor all e-mail transmitted via an employer-provided system. Note that this exception would not apply to situations in which the employer simply provides the employee access to a commercial e-mail service.

Third, the ECPA provides that the interception of electronic communication is lawful if it is for a legitimate business purpose. Courts have taken two separate approaches to this exception. Under the first approach, an employer may monitor e-mail where the employee has been informed of the monitoring and it is necessary to protect the employer's business interests.

The second approach examines the content of the intercepted communication. Under this approach an employer may intercept business related e-mails but not personal e-mails. An e-mail message is considered business related e-mail if it is a message in which the employer has a legal interest or the interception is necessarily to guard against the unauthorized use of the e-mail equipment.

A company will have a legal interest in an e-mail message when the message is either in pursuit of the employer's business or is a detriment to the employer's business.

An employer that wishes to leave open the opportunity of monitoring employee e-mail messages would be well advised to inform its employees that it reserves the right to monitor e-mail messages.

By informing employees, the employer will be in a stronger position to argue that its employees do not have a "reasonable expectation" of privacy in their e-mail messages and thus avoids having to rely on the court's own notion of what privacy expectation is reasonable.

Once it has been decided that the employer can lawfully monitor employee e-mail, the tougher question becomes whether it is in the employer's best interest to monitor. It might allow the employer to uncover inappropriate employee e-mail uses, but it also may scare them away from using the productivity enhancing tool.

The use or misuse of e-mail may also have a serious effect on litigation. While most e-mail users believe that once they have deleted an e-mail message it is gone forever, this is not the case.

Many high-tech firms have been formed for the sole purpose of recovering e-mail messages the sender thought had been erased. The founder of one such firm recently stated, "Don't put anything in e-mail that you would not want read over the loud speaker throughout the company." Sound advice.

An additional problem may arise with respect to attorney-client communications via e-mail. While there have yet to be any decisions on the effect of e-mail on the attorney-client privilege, at least one bar association has taken the position that e-mail may destroy it and has likened e-mail to cell phone calls.

It is clear that e-mail is here to stay. In order to use the tool effectively, corporate managers must be aware of the potential legal and practical problems accompanied by the use of e-mail. However, with proper planning and a good policy, e-mail can greatly enhance the productivity of most companies.

Steven Miller is an attorney with Vorys Sater Seymour and Pease specializing in employment and labor law. He can be reached at 464-6400.

© 1997, Business First