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 issan fired an employee for sending personal messages !some containing sexual content" through the company e-mail system. #our$e sued for wrongful termination, claiming invasion of privacy. The court denied his claim on the grounds that #our%ue had no reasonable expectation that his &-mail was private. Smythe vs. The Pillsbury Co. A 'illsbury employee was fired after the company intercepted (inappropriate and unprofessional comments( that the employee had made to his supervisor over the company e-mail system. The 'illsbury Company had repeatedly assured its employees that all e-mail communications would remain confidential and privileged, and that it would not intercept e-mail or use it as grounds for termination. Smythe was still fired and the court bac$ed 'illsbury. Hu cut vs. Mc!onal"#s )c*onald's employee )ichael +uffcut began an extramarital affair with an assistant manager at a )c*onald'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 lin$ing a do,en franchises. A )c*onald's manager retrieved the couple's messages and played them to +uffcut's wife and his boss. The multi-million dollar case is still in litigation.) $n Bohach vs. City o %eno -eno police officers sent messages to one another over the -eno 'olice *epartment's message system. .aced with an internal affairs investigation based upon the contents of the messages, the officers filed suit. They alleged that the storage of the messages by the *epartment's computer networ$ and the subse%uent retrieval of those messages from the computer's files constituted, among other things, violations of the &lectronic Communications 'rivacy Act. The officers were overruled. Technology &aw E-mail's popularity poses workplace privacy problems Steven Miller &lectronic mail messages are fast becoming the communications vehicle of choice for much of corporate America. &-mail is in use, in some capacity, in all .ortune /000 companies, and it is expected that by the year 1000, 20 million e-mail users will be sending 30 billion e-mail messages a year. 4hile the efficiency and practicality of e-mail is a ma5or benefit to most businesses, email is not without its problems. .or instance, can an employer legally monitor e-mail, and if so should it monitor e-mail6 4hat impact does an employee's unscrupulous use of employer-provided e-mall have on the employer6

4hat role will e-mail messages play in litigation6 These are 5ust a few of the %uestions that all employers should consider. The .ederal &lectronic Communications 'rivacy Act of /783 generally prohibits the interception of electronic communications, including e-mail. +owever, three ma5or exceptions to the &C'A may allow the interception of employee e-mail. .irst, 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. 9t 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 &lectronic )ail Association has interpreted this exception to allow an employer to monitor all e-mail transmitted via an employer-provided system. ote 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 &C'A provides that the interception of electronic communication is lawful if it is for a legitimate business purpose. Courts have ta$en two separate approaches to this exception. :nder 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. :nder 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 unauthori,ed use of the e-mail e%uipment. 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. #y 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.

;nce it has been decided that the employer can lawfully monitor employee e-mail, the tougher %uestion becomes whether it is in the employer's best interest to monitor. 9t 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. 4hile most email users believe that once they have deleted an e-mail message it is gone forever, this is not the case. )any 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, (*on't put anything in e-mail that you would not want read over the loud spea$er throughout the company.( Sound advice. An additional problem may arise with respect to attorney-client communications via email. 4hile there have yet to be any decisions on the effect of e-mail on the attorneyclient privilege, at least one bar association has ta$en the position that e-mail may destroy it and has li$ened e-mail to cell phone calls. 9t is clear that e-mail is here to stay. 9n 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. +owever, with proper planning and a good policy, e-mail can greatly enhance the productivity of most companies. Steven )iller is an attorney with <orys Sater Seymour and 'ease speciali,ing in employment and labor law. +e can be reached at 232-3200. = /77>, #usiness .irst