February 09, 2023

Workplace Privacy: Whose Business is it Anyway?

If you employ one or more employees or independent contractors in MD, VA, WV, SC, or NC, consider this recent decision from the 4th U.S. Circuit Court of Appeals.

An employer permitted an independent contractor to use her personal email address for business purposes. She accessed her personal email account using a shared desktop computer at the employer’s worksite that was also used by employees.  After the company terminated her services, it found some email messages from her personal email account, via the web browser she left open on the shared desktop. Some of the emails were about her plan to leave and take some coworkers with her. When the company and her new employer filed claims of unfair competition against one another, the company published those emails at trial. She then filed her own lawsuit, alleging the company violated the Stored Communications Act (SCA).

The SCA prohibits intentional and unauthorized access to certain electronic communications.  The court found that while the company’s initial discovery of the emails might not have been intentional, its subsequent use of them may have been both intentional and unauthorized. Thus, the court sent the case back to the lower court to consider, “whether the unintentional initial discovery of [the worker’s] emails shields the subsequent decision to review and print certain emails from liability under the Act.”

Lessons Learned. Talk to your company’s legal counsel about your electronic communications policies and procedures. Include your IT consultants and administrators. Discuss the myriad options and security protocols you might implement to safeguard your proprietary information. If you have a bring-your-own-device or BYOD policy, ensure it aligns with the SCA and gives you authorization to access any company communications, files, etc., that the employee might create, access, receive, or store on a personal device. Otherwise, consider just paying the cost of providing the devices the employee needs and prohibiting use of personal devices for business purposes.

Interesting note. This case involved an independent contractor, not an employee. Yet, the court repeatedly referred to the defendant company as the “employer” and referenced her separation as when they terminated her “employment.”  When you craft your policies, consider what third parties might have access to your electronic systems and consider what agreements you may need them to sign, as well.