Employer monitoring of employees’ e-mail and internet usage is on the minds of many. In order to monitor lawfully, employers must notify employees of their intent to monitor so that the employee does not have a legitimate expectation of privacy when sending e-mails and browsing the web at work.
Delaware employers must give such notice by law. But the N.Y. Times reports about a suit that raises a tougher question–a case in which a former employee alleging that his former employer read his private Yahoo! e-mails after the employee had been terminated.
This case, recently filed in federal district court in Connecticut, raises two fairly novel issues: (1) can employers lawfully read their employees’ personal e-mails if the e-mail accounts were accessed on company time on a company computer; and (2) assuming they can, are employers able to do so after an employee has left the company–in other words, how far will that notification protect employers?
Web-based email, like Yahoo! and G-Mail, are not controlled directly by the employer. But the employer does own the computer used to access the internet, which weighs in favor of the right to monitor personal accounts.
Perhaps the bigger question in this case is how the employer accessed the former employee’s account? They claim that he used a company computer without authorization after he was fired to send trade secrets and confidential information to his Yahoo e-mail account. The information, according to the company’s lawyer, included customer contact lists, terms of deals, brokers who’d sent business to the company, and personal employee data. All of which, says the company, would be in violation of his employment agreement.
It seems that there are multiple possible claims that could arise from these facts:
- Employee vs. Employer for breach of privacy;
- Employer vs. Employee for breach of contract (his employment agreement);
- Employer vs. Employee for trade secret violations
- Employer vs. Employee for violation of the Computer Fraud and Abuse Act, which has been used when employees wrongfully access their company’s computer network and cause harm as a result;
3 for the Employer and 1 for the Employee, according to my count. Of course, I could be missing some, so let me know if you think of others and I’ll include them in the tally.
We’ll keep you posted on what could be an important decision in the new legal territory of employees’ privacy rights.
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