San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

The Los Angeles Times reported on June 19, 2008, that the Ninth Circuit’s decision in Quon v. Arch Wireless Operating Co., “sharply limited the ability of employers to obtain e-mails and text messages sent by employees on company-financed accounts.” And many major news outlets echoed this sentiment: "Court Rules Employee Text Messages Are Private," "SF Court Protects Privacy of Work Communications," "Stop Snooping on Email, Court Tells Some Nosy Bosses." However, the assertion of the LA Times reporter, while literally true, is pure hyperbole when viewed in the context of a real-world workplace.

The Ninth Circuit ruled in Quon that a text-message provider, Arch Wireless, violated the federal Stored Communications Act (the “Act”) by disclosing to the City of Ontario Police Department sexually explicit text messages sent by Sgt. Quon using a City-issued text-message pager, even though the City was the subscriber on the service contract. The Court explained that the Act prohibits providers of an “electronic communication service” — Internet Service Providers (ISPs) and text messages services, for example — from disclosing stored e-mail or text messages without the consent of the sender or recipient. At first blush, this ruling appears to present a dramatic shift in the balance of power between employers and employees in the spy vs. spy world of workplace monitoring.

Not so fast: Employers can easily and lawfully circumvent the Court’s ruling. Employers, for example, can prohibit employees from conducting any company business other than over the corporate network, and they can limit company-issued electronic devices to those, such as a Blackberry, that can be configured to route all communications through the corporate network. Notably, the Ninth Circuit’s decision expressly reaffirmed the well established rule that employers can defeat an employee’s expectation of privacy by distributing a policy unambiguously stating that employees communications using corporate resources will be monitored and are not private.

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In a highly anticipated decision, the National Labor Relations Board has emphatically landed on the side of employers whose policies bar employees from using corporate e-mail resources for union activities.

In The Guard Publishing Co. d/b/a The Register Guard, the Board, in a 3-2 decision, held that “employees have no statutory right to use an employer’s equipment or media for Section 7 communications.”  Section 7 of the National Labor Relations Act  encompasses communications about virtually all union activities by employees, including solicitation, organizing, grievances, picketing, strikes, and discussions about the terms and conditions of employment.  In light of this ruling, an employer may, in the words of the Board, “lawfully bar employees’ nonwork-related use of its e-mail systems,” including use for union activities.

There is a caveat, but as defined by the Board, the caveat is a narrow one:  Employers can not act “in a manner that discriminates against Section 7 activity.” (emphasis supplied).  Significantly, the Guard Publishing decision substantially narrows the prior definition of “discrimination” for purposes of analyzing whether an e-mail policy (or any other policy restricting Section 7 activities) on its face, or as enforced by the employer, interferes with Section 7 rights.

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It will soon be easier to conduct business on airline flights, and a lot riskier from a privacy perspective.  The New York Times ran a story the other day – “Some Airlines to Offer In-Flight Internet Service” – describing Jet Blue’s plans to begin offering free in-flight e-mail and instant messaging service.  Several other airlines also have announced plans to offer Internet service on their planes.  While the convenience may be welcome news to busy executives who criss-cross the country on non-stop business trips, employers should be concerned about the security of private workplace communications and confidential business information in the cramped confines of an airline cabin.  

Consider the number and proximity of work-related travelers —especially in business class.  Now imagine linking the traveler’s laptop or Blackberry to seat-back entertainment systems (Virgin America has plans to implement a system that allows passengers to send messages during a flight).  And now envision your company’s strategic business plan, or non-public profit figures, on display, like an in-flight movie.  Add to this the passenger’s oblivion to his surroundings and the scrutiny of other bored and seemingly harmless passengers.  Without determined efforts, inadvertent in-flight disclosure of confidential business information could become as commonplace as data breaches caused by stolen laptops.

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Employers, for the most part, are the kings of the road when it comes to regulating the use of their electronic resources.  However, several recent cases suggest that the National Labor Relations Board (NLRB or “the Board”) may soon be playing the role of traffic cop on the employer-provided segment of the information highway.  In Media General Operation v. NLRB, the Fourth Circuit affirmed the NLRB’s finding of an unfair labor practice against a newspaper which had instructed union members to stop using the company’s e-mail system to distribute union-related messages.  The Fourth Circuit relied upon the well established rule that an employer who permits any non-union use of its e-mail system — even if that non-union use violates a business-use only policy — cannot discriminate against union-related communications.  Around the same time, the Board heard oral arguments on the question whether employers violate the National Labor Relations Act (NLRA) by enforcing a prohibition against all non-business use — whether union or non-union — of their e-mail system.  See Guard Publishing Co. d/b/a The Register-Guard.

On September 10, 2007, the Board highlighted another NLRA-based restriction on the ability of employer’s to set rules for employee use of employer-provided electronic resources. The Board held that a union employer violated the NLRA by implementing a revised e-mail policy without first reaching agreement or impasse with the union.  This ruling will be a speed bump for unionized employers struggling to keep current their policies regulating the use in the workplace of rapidly evolving communications technology and of an ever expanding menu of personal “gadgets” (iPods, Blackberries, camera phones, etc.). 

The recent decision involved California Newspaper Partnership d/b/a ANG Newspapers (ANG), a publisher of five newspapers in the San Francisco Bay Area.  The newspaper company faced a grievance from the Media Workers’ Union for disciplining a reporter who had sent an e-mail to several other union members/employees about union matters in violation of ANG’s policy prohibiting all employees from sending such “broadcast e-mails” on any subject matter.  The union attacked the discipline by arguing that the policy which the reporter allegedly had violated (the “ challenged policy”) was unlawful.  To support that position, the union contended that the challenged policy was a revision of a prior policy and that the newspaper had commenced bargaining over the challenged policy but implemented it unilaterally before reaching agreement or impasse with the union.

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Certain provisions of employer policies governing the use of electronic resources have become mantra:  “Employees should have no expectation of privacy in their e-mail or Internet use”; “Employer reserves the right to access, monitor, and review any communication sent or received using corporate communications resources”; “Corporate communications resources can not be used to send or receive harassing, pornographic, or offensive messages,” etc.  But, employers who do not want their policies to become anachronistic should review and update those policies regularly to stay abreast of new technologies and new uses of technologies flooding the workplace as well as recent developments in pertinent case law.  Here are a few changes to consider.  We will follow with more in future blog entries:

            Blogging:  Blogging by employees is common.  With more than 70 million blogs on the World Wide Web and nearly 1.4 million new blog entries daily, employers need to consider the impact that employee blogging may have on their business and workplace.  Employers who do not endorse blogging should consider adding to their electronic resources policy a provision which bars employees from using corporate communications resources to view or post to any blog that is unrelated to work.  Employers also should consider a separate blogging policy to address off-duty blogging on the employee’s own time. 

            Video In The Workplace:  That employee who has spent the last three hours glued to her computer monitor without pause may be watching Gone With The Wind.  According to a recent Pew Foundation study, 57% of online adults have used the Internet to watch or download video, and 19% do so on a typical day.  Three-quarters of broadband users (74%) who enjoy high-speed connections at both home and work watch or download video online.  Employers who do not currently prohibit viewing or downloading video unrelated to work should now consider doing so before “bandwidth hogs” interfere with business operations.

            Web-Based E-Mail:  According to a report in the New York Times earlier this year, employees frequently rely on their personal Web-based e-mail accounts to conduct business or to store business-related material.  This trend raises a host of issues for employers including the inability to monitor the messages, if necessary, and the difficulty of preserving the messages as part of the litigation hold process.  Employers should consider barring employees from using personal Web-based e-mail for business purposes.

            Electronic Communications May Be Disclosed To Law Enforcement:  Recent cases, such as United States v. Ziegler, Doe v. XYC Corp., and United States v. Angevine, suggest that child pornography in the workplace is becoming all too common.  When the child porn is disclosed to law enforcement authorities without a warrant, the employee may be able to succeed in suppressing the evidence, thereby defeating the criminal investigation – as happened in United States v. Long, 64 M.J. 57 (C.A.A.F. 2006).  Employers can make this result less likely by warning employees that their electronic communications may be disclosed to law enforcement authorities if they create a suspicion of criminal conduct.

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“You have no right to privacy in your e-mail using corporate resources”
“The Company reserves the right to monitor your Internet access at any time”
So chimes policy after policy after policy. But, is the mantra really true?

Several recent cases suggest that answer is “not always.” In United States v. Long, the highest military court (not exactly a known bastion of privacy protection), recently held that a Marine Corps investigator violated a soldier’s privacy rights by obtaining inculpatory e-mail from the system administrator. The Department of Defense had an e-mail policy that was as draconian as any private employer’s, but the policy said nothing about turning over e-mail to criminal investigators, and the system administrator admitted that he did not read individual e-mails when monitoring the system because he felt they were private. Sound familiar?

At the start of 2007, the Ninth Circuit Court of Appeals in United States v. Ziegler held that an employee caught viewing child porn on his work computer had a reasonable expectation of privacy in the computer because it was stationed in his locked office. The court stated more generally, “in the private employer context, employees retain at least some expectation of privacy in their office,” which, for most employees in today’s working world includes a computer with stored e-mail.

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For years now, employers have been warned that a detailed, electronic resources policy is the best defense against vicarious liability for the actions of employees who use corporate e-mail or Internet access like a bully in a sandbox. A recent decision from the California Court of Appeals highlights a potentially more potent defense that has received little attention in employment law circles.

The Communications Decency Act of 1996, 47 U.S.C. §230 [CDA] immunizes any “provider . . . of an interactive computer service” from liability under any state law for information published on the service by someone else. In Delfino v. Agilent Technologies, the plaintiffs sued Agilent for intentional infliction of emotional distress because a former Agilent employees had used Agilent’s e-mail system and Internet access to communicate numerous threatening messages to the plaintiffs. The California Court of Appeals affirmed summary judgment for Agilent based on the CDA.

As a matter of first impression, the court held that a corporate employer, like Agilent, who offers e-mail and Internet access is an interactive computer service provider for purposes of the Act. Because the employee, not Agilent, provided the threatening messages, and the plaintiffs sought relief only under state tort law, the CDA immunized Agilent from liability. By analogy, the CDA can be used to get rid of those pesky state law claims, like negligent hiring, negligent supervision, intentional infliction of emotional distress, and defamation, that tend to accompany Title VII claims alleging harassment through an employee’s use of corporate electronic resources.

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