Tag: Workplace

An Employer Can Be Liable for Accessing an Employee’s Personal Email Even if the Employee Engaged in Misconduct

Over the last several years, communication via email and text has become commonplace in the workplace. Oftentimes, employees use one device for both personal and work-related communication regardless of whether that device is employee-owned or employer-provided. There is no doubt that employers may have legitimate business reasons for monitoring employee communications. For example, an employee may leave the company and the employer is concerned that she has taken confidential information or illegally solicited clients. Employers feel entitled to review data stored on employer-provided, particularly where employees are instructed that the company owns the devices and has the right to monitor the data.  As a general rule, the law supports employers here.  An employer’s zeal to snoop, however, may subject it to both civil and criminal penalties under both federal and state statutes.

The Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA) both govern an employer’s ability to review electronic communications. The ECPA prohibits the interception of electronic communications, and the term “interception” as used in the ECPA has been interpreted narrowly. The SCA makes it illegal to “access without authorization a facility through which electronic communication service is provided,” making it illegal to obtain access to certain communications in electronic storage. With regard to an employer’s review of employee emails sent through web-based email accounts like Gmail or Hotmail, the most frequent scenario is where the former employer is able to access the former employee’s web-based email account because the employee saved his username and password on a device provided by the employer. In these cases, courts have typically sided with the former employee and have been reluctant to punish the former employee for failing to take appropriate steps to secure their own personal information and allegedly private communications.  The former employee’s own negligence in securing personal data is not a defense for the employer.

Bottom line – an employer should seek advice before accessing an employee’s personal email account without authorization even though it has the ability to do so.

For more information on this topic please contact:

Howard Teplinsky at:

312-368-0100 or hteplinsky@lgattorneys.com.

Limits on Protection for Facebook Posts

Several months ago, we blogged about employee protections afforded by the National Labor Relations Board with respect to social media postings (Increased Focus on Employer Policies and Handbooks).  The board has been very active the past several years making determinations regarding whether employees’ work-related Facebook posts are the type of protected concerted activity afforded protection under section 7 of the National Labor Relations Act (NLRA). In most of the cases it has considered, the board has determined that employees’ work-related communications via social media were protected concerted activity subject to the protections of the NLRA.  In a recent decision, however, the board ruled in a case involving the type of social-media communications that are so inappropriate that they lost their protection.

Generally speaking, the NLRA protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union.  Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.

In the recent case of Richmond District Neighborhood Center, the issue before the board was a Facebook “conversation” between two employees.  The two employees worked for a teen center in San Francisco.  At the end of the center’s 2012 summer program, the employer extended offers of employment to both employees for the 2012–2013 school year and the 2013 summer program. However, one of the employees was demoted due to a negative performance evaluation.

After receiving their offer letters in August 2012, the two employees engaged in a Facebook ‘conversation’ full of profanity.  The ‘conversation’ also included a former student participant in the teen program.  The two employees discussed their intent to be regularly absent from work, plan activities for the students without obtaining the employer’s authorization, play loud music and teach the student participants to spray graffiti. The employees’ exchange was visible to any person designated as a Facebook “friend” of either of the employees. The day after this exchange, another employee of the teen center sent screen shots of the Facebook exchange to management, and the employer rescinded both employees’ offers. The employees challenged their terminations.

The board concluded that “the pervasive advocacy of insubordination in the Facebook posts, comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render the employees unfit for further service.” The board’s decision was based primarily on the type of the misconduct the employees advocated.

To discuss whether or not your employees’ communications via social media posts may be protected as a type of protected concerted activity under section 7 of the NLRA, please contact:

Jonathan M. Weis at:

jweis@lgattorneys.com or 312-368-0100

or

Mitchell S. Chaban at:

mchaban@lgattorneys.com or 312-368-0100

testimonials

"We've worked with Levin Ginsburg since the 1980s...we have grown with them and have a very high level of comfort and confidence with this firm." Jay Nichols, President,
Badger Murphy
"Astute, responsive and practical. Those are three reasons why we work with Levin Ginsburg." Bryan L. Oyster, V.P. and General Manager,
Bentley Forbes