Monitoring Employee Electronic Communications

by Jaburg Wilk
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Jaburg Wilk

A growing number of employers monitor and review their employees’ electronic communications, including telephone calls, emails and internet use, while at work or working away from the office. They cite a number of legitimate business reasons for doing this, such as:

  • Maintaining employee productivity by minimizing personal use of the employer’s telephone and computer systems;
  • Ensuring compliance with workplace policies and procedures, such as policies that prohibit malicious gossip or sexual harassment in the workplace;
  • Monitoring to discourage and prevent unauthorized disclosures of confidential business information; and
  • Protecting the employer’s good will and reputation.

What could possibly be wrong with that and from whose perspective?  We start from the basic assumption that, generally, employers want to monitor and review their employees’ electronic communications, and employees do not want to be monitored and reviewed. 

What employers may call good business practice is often seen as a “Big Brother” intrusion into the details of their employees’ personal and private lives.  Salespeople learn to share their personal lives with clients and customers as a way to bond and develop a relationship with them and assure continued sales.  Business melds with personal details, and both are arguably fair game to the employer who wants to know as much as possible about the employee, both business and personal.  Who do they talk to, what do they say, what is said to them or about them, how well do they do their job, are they unreliable or lazy, do they take unscheduled breaks or unreported time off, what do they really think about the employer, and–ultimately–should they be retained or fired? 

How do we separate the business from the personal and private in any given telephonic or electronic communication?  The unfortunate answer is, even with the best most sophisticated software available today, we can’t.  As of today, the best we have are federal laws that draw a distinction between the use of employer-owned and personal electronic communications services.     

Monitoring Employee Emails and Internet Use 

The federal Electronic Communications Privacy Act (the “Stored Communications Act”) protects the privacy of all wire, oral and electronic forms of communications from intentional unauthorized access, including telephone, email and internet communications.[i]  The Act protects an individual’s privacy and proprietary interests stored on the internet, just as the common law tort of trespass protects those who rent space from a storage facility to store their private and sensitive documents.

In the employment law context, employers are subject to the Stored Communications Act.  The Act contains certain exemptions, however, including a specific exemption for employers, who are allowed to monitor and review employees’ internet or email use as long as:

  • The monitored information is stored and reviewed on employer-provided wire or electronic communications services, and
  • The review is authorized by the employer’s policies.

In other words, an employer may monitor and review its employees’ telephone calls and emails stored on employer-provided electronic communications services if it has a policy in place (notice to the employees) that authorizes the activity.  However, there are pit falls to watch out for.

First: the monitored information must be stored and reviewed on an employer provided wire or electronic communications service.  That the service is provided by the employer makes it much less likely that the employee has a reasonable expectation of privacy when using those services.  On the other hand, an employee who uses personal communications services to conduct company business may have a very reasonable expectation of privacy when using those services.  Employers should not allow an employee’s use of personal telephone or electronic communications services to conduct company business or, if that is not feasible, have an agreement or policy in place, signed by the employee, that clearly distinguishes between private and business communications and includes the employee’s express consent to employer monitoring and waiver of any right to privacy the employee may otherwise have in such business communications.

Second: the telephonic or electronic communication must be accessed only “while it is in electronic storage.”[ii]  “Electronic storage” means either temporary storage incidental to electronic transmission or storage for purposes of backup protection.[iii] Intercepting an employee’s telephone calls or electronic communications in transit, without the employee’s prior consent, moves the issue outside the protection of the Stored Communications Act and into the murky realm of the federal Wire Tap Act.[iv]  

The Wiretap Act makes it illegal for anyone, including an employer, to intercept any wire, oral or electronic communication. Intercepting a telephone call is what we typically think of as wiretapping.  Intercepting an electronic communication, however, is a very different and difficult matter because of the almost instantaneous transmission of electronic messages.  Unless some type of automatic routing software is used to divert it, intercepting an electronic communication in violation of the Wiretap Act is virtually impossible.

Employee State Common Law Privacy Claims 

Both the federal Stored Communications Act and Wire Tap Act are statutes that modify only to some extent state common law privacy rights.  Thus, an employer who complies with the federal statutes may still be liable to an employee for invasion of the employee’s state common law right to privacy. That right is expressly guaranteed by Article II, section 8, of the Arizona Constitution. Ariz. Const. art. II, § 8 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”).

Even though constitutionally protected, not every violation of another’s privacy is unlawful.  A legal claim for violating someone else’s right to privacy in Arizona requires proof that there has been an intentional intrusion into a private place, conversation or matter and that the manner of intrusion is highly offensive to a reasonable person. To be private, the target of the intrusion must have had a reasonable expectation of seclusion or solitude in the place, conversation or matter.  And even if that is the case, the intrusion itself is not unlawful unless it is accomplished in a manner that is highly offensive to a reasonable person. 

Depending on the facts and circumstances, employees may or may not have a reasonable expectation of privacy when they are using an employer-provided communications service.  In such cases, courts typically determine the boundaries of an employee’s reasonable expectation of privacy in his or her emails and online usage and balance those expectations against the employer’s business interests in monitoring its employees’ electronic communications activity. Different courts consider and weigh various factors, including:

  • The general nature of the work environment;
  • The employer’s stated justification for monitoring;
  • The employee’s interest in protecting his or her activity or information;
  • The means of monitoring used by the employer;
  • The reasonableness of the employee’s expectation of privacy in context; and
  • Whether the employer:
    • Gave notice to its employees of its policy or practice of monitoring their telephonic or electronic communications and the extent of monitoring; or
    • Allowed or prohibited its employees to use its telephones or electronic communications systems for personal use.

Providing written notice to all employees regarding the employer’s monitoring of its telephonic or electronic communications systems is, by far, the most effective way to notify employees that they should have limited or no expectation of privacy when using the systems.  Most employers include a policy in their employee handbook.  It is even better to have signed agreements with employees to obtain their affirmative consent and waiver of claims concerning such matters. 

Best Practices for Employers and Employees 

The best practice for employers is to have an adequate written agreement or policy in place, signed by the employee, that expressly:

  • Provides notice to employees of the employer’s intent to monitor and review any or all employee telephonic and electronic stored communications sent or received with the use or assistance of employer-provided communication services;
  • Provides that the employee consents to the employer’s interception of any or all employee telephonic and electronic communications sent or received with the use or assistance of employer-provided communication services at the time when the communication is sent or received;
  • Provides that the employee acknowledges and agrees he or she does not have a reasonable expectation in the solitude, seclusion or privacy of any telephonic or electronic communication sent or received with the use or assistance of employer-provided communication services; and
  • Provides that the employee waives any and all rights or legal claims he or she may have to sue or take any action against the employer for violating in any way his or her privacy rights under state of federal laws.

The best practice for employees is to always be wary of an employer’s ability, if not right, to monitor your telephonic and electronic communications with or without your agreement or consent. Just assume you are being monitored and act in a professional manner at all times when using employer-provided or personal communication devices and services.  This makes so much sense in a world that is rapidly shrinking our personal and private lives at work, at home and everywhere else. 

Regardless of where you are or what you are doing, the best advice for anyone these days is to never ever say or write anything to anyone that you would not want to see posted on the internet, published in the National Enquirer, and tattooed in big red letters on your forehead.  Yes, it has come to that.     

[1]See 18 U.S.C. §§ 2510-2522.

[1] 18 U.S.C. §§ 2701(a)(1), 2707(a).

[1] See 28 U.S.C. § 2510(17)

[1] See 18 U.S.C § 2511(1)(a).  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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