E-Newsletter

February 2010

Employer Monitoring of Digital Information Technology and Employee Privacy Rights

Thomas P. Krukowski, Esq.

The increased use of electronic communication technology, including e-mail, cell phones, and text messaging, has enhanced the transfer of information and interaction in the workplace. With the simple tap of a key, employees can easily and instantly communicate with their employer, co-workers, clients, vendors and customers. Although digital technology has improved the speed and content of communications and resulted in increased productivity, the casual format of e-mail and text messaging has also created changes in social interaction, blurring the traditional boundaries of business relationships and opening the door for new methods of harassment.

Lawsuits involving inappropriate or offensive e-mails and text messages sent on employer-owned equipment are on the rise and nearly every state, including Wisconsin, now have anti-stalking laws that refer to electronic forms of communication. Sending unwelcome and often inappropriate e-mails and text messages is often referred to as "textual" harassment and may occur between co-workers, supervisors and subordinates, and employees and vendors, clients and non-work-related individuals. Although there is no official definition of textual harassment, Urban Dictionary defines it as the involvement of harassment (general or sexual) through text messages, or someone sending volumes of text messages that harass, annoy or alarm another person in a manner, which the person knows is likely to cause annoyance or alarm. As a result, it has become increasingly necessary for employers to establish policies and, in some cases, create systems, to monitor employee use of electronic communication devices. Employers' efforts to limit liability has, in turn, raised new issues regarding privacy and protection under the Fourth Amendment of the U.S. Constitution and similar claims under state constitutions.

Assembly Bill 30

The Wisconsin legislature has addressed this burgeoning issue through the introduction of Assembly Bill 30 (AB 30), which would regulate employer monitoring of employee e-mail usage. The bill would allow employers (including the state) to monitor e-mail messages sent or received by employees on a computer owned by the employer if the employer 1) provides written notice to the employee (upon hire and then annually) of the employer's policy for monitoring e-mail, and 2) provides a 30-day written notice to employees regarding any changes to the policy. The notice would be required to include a statement of the purposes for which employee e-mail messages are monitored, the frequency of the monitoring, and a statement for the employee to sign acknowledging that the employee has received and understands the notice.

Restrictions of AB 30

Employers would not be allowed to monitor any e-mail messages sent or received by employees regarding forming, joining or assisting a labor union, or involving collective bargaining activities. Employees would also have a reasonable expectation of privacy in the content of any personal e-mail message sent or received by an employee. The employer would only be allowed to monitor the content of a message as necessary to determine whether the message is personal or work-related or to protect any trade secret or other confidential business information of the employer. In addition, an employer would be able to monitor the number or frequency of the personal e-mail messages sent or received by an employee to determine the efficiency or productivity of the employee.

Issues for employers to be concerned about in this evolving area of the law include:

1. How does an employer avoid employee abuse of electronic communication systems?
   
   
2. How does an employer balance its need to monitor employee use of electronic communications to avoid abuse with employee privacy rights?
   
   
3. How does an employer investigate a claim of harassment involving e-mails or text messages originating from employer-owned equipment?
   
   
4. What legal issues face an employer whose employee has textually harassed a co-worker, client, vendor or third-party?
   
   
5. What are best practices for an employer when disciplining an employee suspected of abusing of company-owned electronic communication systems?
   
   
6. Should employers make employment decisions based on information found on personal social networking sites such as Facebook and MySpace, and if so, how?
   
   
7. How do company-issued pagers, cell phones and personal digital assistants (PDAs) affect compensation issues?
   

While electronic forms of communication have become an indispensable part of today's workplace, they also come with their own unique set of challenges. Digital devices can quickly and, sometimes anonymously, transmit comments, photos and documents; however, due to the ease, brevity and casual nature of these communications, employees can more easily cross the line from acceptable business behavior to harassment. The increase in employment law cases involving claims of harassment due to inappropriate text messages illustrates the importance of this issue. Employers can not afford to ignore such actions by employees and face substantial liability if they know about violations of policy and harassment but do not address the issues.

For guidance on this and other employment law questions, contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.