Archive for the ‘Employee Privacy’ Category

More and more these days, employers are proving employees with policies pertaining to use of e-mail, internet and social media at work. Take a look at these documents, read them and make sure you understand them. Especially if you plan to sue your employer at some time in the future. Case in point, Gina Holmes.

Ms Holmes is a woman who sued her employer claiming discrimination. It was ruled recently that she can’t shield her lawyer e-mails in the litigation because they were sent from her work e-mail account, a California appeals court has ruled.

Gina Holmes had claimed the e-mail was protected by the attorney-client privilege.

The Sacramento-based appeals court said the e-mail was not a protected confidential communication because Holmes’ employer, the Petrovich Development Co., had warned that employee e-mails were not confidential and were subject to monitoring.
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I have previously posted on the topic of employees getting into trouble for things they post on their Facebook, LinkedIn and other social networking sites.  In some cases they have been sued or fired based upon whats on their site.  Seems to me though there is a very simple solution to this problem, make your settings private on your Facebook and other sites and don’t invite your boss to be your friend if you are gonna say bad things about him/her or your job.

By  keeping your information on these sites private, if the employer accesses this information in a underhanded fashion or though a co-worker, the employer is violating in most cases state privacy laws as well as the Federal Stored Communications Act, which prohibits employers from accessing, without the employee’s consent, an employee’s secure website bulletin board or private chat room to search for posts critical of the employer, union or customers.  The Stored Communications Act, 18 U.S.C. § 2701 et seq., (the “SCA”) regulates when an electronic communication service (“ECS”) provider may release the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.”

Under 18 U.S.C. § 2701 , an offense is committed by anyone who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;” or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains…[an] electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1)-(2). However, it does not apply to an “electronic communication [that] is readily accessible to the general public.” 18 U.S.C. § 2511(2)(g).

Court have generally held Facebook, MySpace and other social networking sites to be subject to the SCA where the user has designated their information as private.  So keep your information private, don’t invite your employer to review the information and at least your back will be covered in the event your employer surreptitiously gains access to the information.  One exception would be if you consented to your employer’s access to such information so be on the look out for your employer trying to get you to sign a document that would allow it to access your private online information.

If your employer improperly accesses your private information, consult with an attorney about your possible options.


In my representation of employees in employment cases, there is already an increase in use of information from social networking sites.  Yes, that is correct, if you sue your current or former employer, they could try to serve a subpoena on facebook, myspace, etc to obtain information relevant to your lawsuit.  While any good litigation attorney would object that this type of discovery violates privacy concerns, there are some judges who would allow this type of information to be obtained.  For instance in a sexual harassment case, maybe the employer is arguing that you had a consensual relationship with the employee or supervisor and maybe your facebook account supports that argument.

Now it appears that an online Communications services company called Teneros has created a software product known as Social Sentry that can automatically monitor the Facebook and Twitter accounts of employees. The cost to the employer would run between $2 and $8 for each employee, with the precise cost being dictated by factors such as the parameters of the social networking to be monitored and the company size.

While prior to advent of Social Sentry employers were capable of doing some social networking monitoring, the value of that monitoring could be outweighed by the sheer enormous volume of social networking data available on the Internet. Social Sentry supposedly will automate the process for employers and make it easier to pinpoint the type of activity for which they have an interest.

While it would still have to be determined whether the employers are within their rights to obtain some of this information, the word of caution is watch what you post….it could come back to haunt you.