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Employer Monitoring of Digital Information Technology & Employee Privacy Rights
The increased use of electronic communication technology, including e-mail, cell phones, and text messaging, has enhanced the transfer of information and interaction in the workplace.  With the simple tap of key, employees can easily and instantly communicate with their employer, co-workers, clients, vendors and customers.  Although digital technology has improved the speed and content of communications and resulted in increased productivity, the casual format of e-mail and text messaging has also created changes in social interaction, blurring the traditional boundaries of business relationships and opening the door for new methods of harassment.
 
Lawsuits involving inappropriate or offensive e-mails and text messages sent on employer-owned equipment are on the rise and nearly every state, including Wisconsin, now have anti-stalking laws that refer to electronic forms of communication.  Sending unwelcome and often inappropriate e-mails and text messages is often referred to as “textual” harassment and may occur between co-workers, supervisors and subordinates, and employees and vendors, clients and non-work-related individuals.  Although there is no official definition of textual harassment, Urban Dictionary defines it as the involvement of harassment (general or sexual) through text messages, or someone sending volumes of text messages that harass, annoy or alarm another person in a manner, which the person knows is likely to cause annoyance or alarm.  As a result, it has become increasingly necessary for employers to establish policies and, in some cases, create systems, to monitor employee use of electronic communication devices.  Employers’ efforts to limit liability has, in turn, raised new issues regarding privacy and protection under the Fourth Amendment of the U.S. Constitution an similar claims under state constitutions.
 
Assembly Bill 30
The Wisconsin legislature has addressed this burgeoning issue through the introduction of Assembly Bill 30, which would regulate employer monitoring of employee e-mail usage.  The bill would allow employers (including the state) to monitor e-mail messages sent or received by employees on a computer owned by the employer as long as 1) the employer provides written notice to the employee (upon hire and then annually) of the employer’s policy for monitoring e-mail, and 2) provides a 30-day written notice to employees regarding any changes to the policy.  The notice must include a statement of the purposes for which employee e-mail messages are monitored, the frequency of the monitoring, and a statement for the employee to sign acknowledging that the employee has received and understands the notice.
 
Restrictions of AB 30
Employers would not be allowed to monitor any e-mail messages sent or received by employees regarding forming, joining or assisting a labor union, or involving collective bargaining activities.  Under the bill  employees would also have a reasonable expectation of privacy in the content of any personal e-mail message sent or received by an employee.  The employer would only be allowed to monitor the content of a message as necessary to determine whether the message is personal or work-related or to protect any trade secret or other confidential business information of the employer.  In addition, an employer would be able to monitor the number or frequency of the personal e-mail messages sent or received by an employee to determine the efficiency or productivity of the employee.
 
Status of Legislation
AB 30 was introduced on February 5, 2009 and referred to the Committee on Personal Privacy.  Following a public hearing on April 7, 2009 the bill proceeded to an Executive Session on September 24, 2009 during which an amendment was proposed and passed and the bill was then referred to the Committee on Rules, where it currently sits.
 
The U.S. Supreme Court to Determine Reasonable Expectation of Privacy
In fact, a case involving this issue has recently been accepted by the U.S. Supreme Court for oral argument.  Quon v. Arch Wireless Operating Company will address the issue of whether the Ontario, California, police department violated the Fourth Amendment rights of Sergeant Quon  when it reviewed the content of messages sent from his department-issued text pager.  A key question that the Court will address is:  What is an employee’s expectation of privacy in the use of employer-issued electronic communication devices and how should the Fourth Amendment apply to the unique facts in the Quon case?
In the Quon case, the Police Department had issued a “Computer Usage, Internet and E-mail Policy” to its employees which provided notice that the city reserved the right to monitor and log all network activity and that access to the Internet and e-mail system was not confidential.  Employees, including the plaintiff, signed forms acknowledging receipt and understanding of the policy.  However, an informal policy was instituted by one of the department’s lieutenants which provided that, as long as a user paid for any charges for exceeding the 25,000 per month character limit, the content of the text messages would not be audited, which inferred a reasonable right of privacy.  Although Quon paid for his overages, the police department audited his text message and pager usage, which exceeded the monthly limit.  Transcripts of the text messages obtained from the wireless service provider, Arch Wireless, revealed a number of inappropriate text messages.
 
The lawsuit filed by Quon and other plaintiffs alleged violation of their Fourth Amendment rights and the right to privacy under the federal Stored Communications Act (SCA).  One issue was the purpose of the audit.  Because the jury found that the purpose of the audit was to determine the efficacy of the character limits there was no constitutional violation.  However, on appeal, the judge determined that, due to the department’s informal policy, Quon’s expectation of privacy was reasonable.  The Court also determined that the expectation of privacy pertained to content of the message but not to the content contained in the header of a message (the TO: and FROM: line).
 
Application to Private Employers
The Fourth Amendment analysis in Quon, which focused on the expectation of privacy and applied to unreasonable search and seizures by the government, does not apply to private businesses; however, the court’s reasoning does provide useful instruction to private employers.
For example, an employer’s written policy governing electronic communications should contain language stating the policy may only be modified in writing by senior management.  This caveat would avoid the issue created in Quon case.  The policy should also reflect the actual practice of the organization because an employer’s practice versus its policy will be a determining factor in defending a claim (e.g., a written policy prohibiting all non-business use of e-mail that is contrary to the company’s actual practice of allowing personal e-mail use).  Further, if an employer uses a third-party provider, that provider should be incorporated into the policy to ensure that obtaining the text content of messages is covered.
 
Other issues for employers to be concerned about in this evolving area of the law include:
  1. How does an employer avoid employee abuse of electronic communication systems?
  2. How does an employer balance its need to monitor employee use of electronic communications to avoid abuse with employee privacy rights?
  3. How does an employer investigate a claim of harassment involving e-mails or text messages originating from employer-owned equipment?
  4. What legal issues face an employer whose employee has textually harassed a co-worker, client, vendor or third-party?
  5. What are best practices for an employer when disciplining an employee suspected of abusing of company-owned electronic communication systems?
  6. Related issues involve employee postings on personal social networking sites, such as Facebook and MySpace, and whether employers should and, if so, how, make employment decisions based on information on these sites.
  7. How do company-issued pagers, cell phones and personal digital assistants (PDAs) affect compensation issues?
Conclusion
While electronic forms of communication have become an indispensable part of today’s workplace, they also come with their own unique set of challenges.  Digital devices can quickly and, sometimes anonymously, transmit thoughts, comments, photos and documents; however, due to the ease, brevity and casual nature of these communications, employees can more easily cross the line from acceptable business behavior to harassment.  The increase in employment law cases involving claims of harassment due to inappropriate text messages illustrates the importance of this issue.  Employers can not afford to ignore such actions by employees and face substantial liability if they know about violations of policy and harassment but do not address the issues.
 
 
Legislative Partner
 
Krukowski & Costello
 
 
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Margie Harvey

Margie Harvey, SPHR
Miles Kimball Company 
250 City Center
Oshkosh, WI  54906
Ph: 920.232.6409
Fx: 920.231.1247   
Em: mharvey@mileskimball.com

 
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