Lexington, KY - While the means of workplace communication has changed drastically over the last decade, the content - and the risk that the content may lead to liability for employers - has not. In fact, the risk of liability only increases, as the virtually indestructible universe of quickly composed but ill-considered electronic messages proliferates. Some of these messages may create legal liability under the laws prohibiting harassment, defamation, copyright infringement and more. How can employers protect themselves from legal action based on their employees' electronic communications?
Read about the hypothetical experience of Buddy's Billiards below, and see what you think.
Electronic misdeeds at work
Buddy's Billiards, a popular bar and entertainment spot, is owned by Buddy Briggs. Buddy's bookkeeper, Betty, shares office space with Mike, Buddy's manager. Betty tells Buddy that when Mike leaves the office, she sometimes reads what is on his computer screen. Yesterday, she saw an e-mail that he was composing that was full of graphic sexual language.
Buddy's does not have an employee handbook or any written policies, except for one: on the advice of his lawyer friend, Larry, Buddy implemented a policy prohibiting harassment. After reviewing the policy, Buddy called Mike into his office and asked if he had ever composed or sent an e-mail with graphic sexual content. Mike insisted that he had not.
Unsatisfied, Buddy asked his computer expert friend, Clive, to search through Buddy's computer e-mail files. He also asked Clive to set up a system so that Mike's e-mails could be monitored by Buddy in the future.
The search and monitoring revealed a number of sexually explicit e-mails sent by Mike to two female employees. The e-mails unquestionably violated Buddy's harassment policy, and Buddy terminated Mike's employment immediately.
Thirty days later, Buddy received a summons and complaint; Mike was suing Buddy's, alleging a violation of his right to privacy under Kentucky law and a violation of the federal law prohibiting interception of and access to electronic communications: the Electronic Communications Privacy Act (ECPA).
Does Buddy's risk liability?
Managing electronic misdeeds in the workplace
It is unfortunate that Buddy's never implemented an electronic communications policy, which would have advised employees of the fact that the company's electronic systems are solely the property of Buddy's, that they have no expectation of privacy with respect to any communications sent, received or stored in the systems, and that Buddy's reserves the right to monitor all such systems at any time, with or without notice. If Buddy's had taken this step, and especially if Mike had signed a copy of the policy, Buddy's would almost assuredly be protected from Mike's lawsuit. The best defense to a lawsuit alleging a violation of Kentucky's common law right of privacy is proof that the employee knew of such a policy and had acknowledged receipt.
Similarly, a viable defense to a lawsuit claiming a violation of the ECPA is that one of the parties to the communication consented, expressly or implied, to the interception of or access to the communication.
The failure to take remedial action when you have notice that an employee may be using your computer system to engage in harassment, defamation, child pornography, copyright infringement or other wrongdoings can expose your company to possible legal liability from anyone harmed thereby. Monitoring employees' electronic communications may be the most effective way to discover that such activity is going on. However, monitoring an employee's communications without having provided notice and obtained at least implied consent may expose your company to legal liability from the employee who is being monitored. To best protect your company, you should draft and enforce a comprehensive electronics communications policy that informs employees, among other things, that their electronic system usage may be monitored at any time. In this way, you may avoid finding yourself on the wrong end of an invasion of privacy or ECPA claim, as Buddy's did.
Wendy Becker is a member in the Lexington office of Greenebaum Doll & McDonald PLLC. This article is provided as general information rather than legal advice. Questions about individual situations should be directed to legal counsel.