Publications
Why Compliance with the ECPA Is Not Enough
All of this is new and untested. We think that, with proper counsel, employers can easily satisfy the ECPA, but we do not think that compliance with the ECPA is an effective vaccination against all potential liabilities for e-mail surveillance. There are other statutes and legal proscriptions that may be implicated by an employer's monitoring of employee e-mail, and those cases have yet to fully bubble to the surface.
For example, suppose you randomly select an employee and monitor his e-mail for a week in order to see if he is spending too much unproductive time engaged in personal e-mail activity. In the course of that monitoring, you read an e-mail in which the employee discloses to a friend that he is HIV positive. Or you read an e-mail that he sends to a union, disclosing his current efforts aimed toward organizing your office staff. You just got more information than you wanted to know. If, by chance, the employee is terminated three months later and believes that his termination was a result of your knowledge of his sickness or his union favoritism, the depositions could become very interesting. What happens when representatives of the employer are asked if, before the firing, they knew that the employee was HIV positive, or if they knew that he was engaged in a union organizing campaign? A routine termination has now become an ADA case, or an Unfair Labor Practice charge before the National Labor Relations Board. There is an unforeseeable variety of information that might be unintentionally gleaned from employee e-mails, such as the organizations they belong to, their sexual orientation, the medications they take, and so on. Sometimes, its better not to know.
Then picture this scenario. The employee's most private and sensitive secrets, now known by the employer, are maintained in a file, stumbled upon by a clerical employee, and disclosed to other employees. Or a memo reflecting the information is accidently seen at the copy machine by another employee, and the word spreads. We believe that courts will be very sympathetic to employees who have their privacy breached, their careers ruined, or their personal lives shattered by these kinds of disclosures.
Up to this point, courts and legislatures have been very reluctant to chip away at an employer's unfettered right to monitor employee e-mail, so long as the employer complies with the ECPA, but we caution against taking too much solace in these results. We believe that it is only a matter of time before the right fact pattern makes its way into a courtroom. Courts deal in precedent. Once a court establishes a precedent in this area, other courts will feel much more sanguine about following suit.
In addition, proposed federal legislation, which is expected to pass, evidences the beginnings of Congressional intent to address this issue. The pending Notice of Electronic Monitoring Act would require all employers to make employees aware of the type of computer use that the employer will monitor, how the monitoring will take place, and how often the monitoring will be conducted. Employees would receive notice of the monitoring activity upon hiring, annually thereafter, and whenever monitoring policies are altered. The law would not prohibit employers from monitoring e-mail, but it would make employees more conscious of the practice, and that will inevitably lead some employees to test the litigation waters. And, by the way, the proposed legislation would permit employees to sue their employers if the required notices were not provided.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
