Vol. 9, No. 4, Pg. 14. Privacy in the Workplace.

• Author: By John F. Lomax Jr.

South Carolina Lawyer

1998.

Vol. 9, No. 4, Pg. 14.

Privacy in the Workplace

14PRIVACY IN THE WORKPLACEBy John F. Lomax Jr.Revolutionary developments in information technology offer employers, among other advantages, new ways of monitoring the workplace. But the rapid expansion of electronic mail (e-mail), voice mail and Internet access raises numerous legal questions. For example:

Does an employer violate federal wiretap laws when it reads an employee's e-mail? Does an employer invade an employee's privacy when it reads an employee's e-mail? What steps can an employer use to mitigate legal liability arising out of monitoring an employee's e-mail, voice mail, or Internet activity?

Employees argue that a company's close monitoring of these systems invades privacy or violates wiretap laws. Employers contend that their primary aim is to promote workers' efficiency, prevent employee theft and minimize liability. The central legal questions involve a balancing of these competing interests.

NEW INFORMATION MEDIA

Employees frequently view voice mail and e-mail systems as private communications devices, yet most are company-owned property, meriting no legitimate claim of private use. Problems arise because voice mail and e-mail programs permit the storage and retrieval of messages.

To the surprise of many employees, a personal voice mailbox or e-mail account is merely a single file in a much larger system, over which the employer's information systems officers have complete control.

Although an employee deletes a particular message or file, the employer may still have the means to view or hear the message. Similarly, Internet access programs permit network operators to track the Internet sites visited by employees, the amount of time spent at each site and whether images and documents were printed or downloaded.

Given these capabilities, do employers want to monitor employees? And if so, how can they do so without exposing themselves to unwanted employee lawsuits?

WHY MONITOR?

Several recent cases reveal why an employer may elect to monitor the employees' voice mail, e-mail or Internet activity. In Owens v. Morgan Stanley & Co., C.A.: 96-CIV-9747 (S.D.N.Y. 1996), two African-American employees filed a Title VII case claiming they were denied promotions based on racial discrimination.

Central to the plaintiff's case was an e-mail message, politely described as racially insensitive, that was disseminated among white executives in the plaintiff's office. Morgan Stanley's legal dilemma may have been avoided if

16the company had routinely monitored its employees' e-mail messages, advising that tasteless jokes and comments should not be written or disseminated and disciplining those employees who failed to heed the advice.

Likewise, employer monitoring may eliminate damaging evidence in sexual harassment cases. Sexually-explicit e-mail messages from employees or frequent solicitations for dates with co-workers via voice mail and e-mail have been the basis of sexual harassment suits. In Rudas v. Nationwide Mutual Ins. Co., 73 Fair Empl. Prac. Cas. (BNA) 187 (E.D. Pa. 1997), a court found the defendant's employee sexually harassed a coworker by sending her graphic email messages stating his sexual desire for her, as well as evaluating her physical attributes. The court dubbed the perpetrator's activity as "E-harassment." Internet access also causes troubling problems. If sexually-explicit material is viewed by employees, electronic records could be important evidence used by an employee suing a company for...