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Imagine a supervisor making an inappropriate remark to one of his direct reports in an after-hours conversation. If he made the comment verbally, and the employee then reported it to the supervisor's employer, any resulting litigation would have involved the usual "he said, she said" situation, in which lawyers would have challenged the employee's credibility.

But what if the comment occurred in a text message? Then, lawyers for the company are at a disadvantage, since a written record of the comment exists.

Harassment by text message -- or "textual harassment" -- is becoming more prevalent. Texas and 45 other states have laws expressly criminalizing electronic forms of harassment, including text messages. Besides the obvious duties involved when investigating a claim of textual harassment, in-house counsel need to be aware of hidden dangers in trying to retrieve text messages or other electronic information as part of an investigation.

When faced with a textual harassment complaint, in-house lawyers for the employer may need to review other text messages as part of an internal investigation. In litigation, employers often want to discover all of the employee's text messages to uncover communications that suggest the employee welcomed the harassment. An employer also may want evidence that the messages, although inappropriate, were not connected to the workplace or were taken out of context. But can an employer access employees' text messages outside of a discovery request without violating their expectations of privacy?

The answer may be no, even if the employer owns or reimburses the employee for the BlackBerry, cell phone or PDA device in which the messages are sent and received. The federal Stored Communications Act generally makes it unlawful for employers to intentionally access stored electronic communications such as e-mails and, likely, text messages without an employee's authorization or in excess of authorization. If, however, the employer is the provider of the communications service used to store the electronic communications, or the employee agrees, the employer may access such communications.

Another applicable law is the federal Electronic Communications Protection Act. It prohibits an employer from intercepting in-transit electronic communications unless the employee consents; the employer is a party to the communication; or the employer provides the electronic communications service and intercepting the messages is necessary to protect the employer's property rights.

CAUSE FOR CONCERN

Recent cases interpreting the SCA and ECPA suggest, however, that an employer may not be allowed to access information from personal electronic communication accounts, which would include text messages, even if they are accessed through an employer's electronic equipment.

According to the U.S. District Court for the Southern District of New York's opinion in Rozell v. Ross-Holst (2007), an employee claimed she was fired in retaliation for reporting sexual harassment. Her employer paid for her private e-mail account. After the employee's termination, the employer accessed and read the employee's private e-mail account and read her personal e-mails, including those to and from her attorney. The former employee accused the company of violating the ECPA by "hacking" into her account, even though the employer paid for the service. The court held that the employer was not automatically authorized to access the account simply because it paid for it.

In a 2008 opinion from the U.S. District Court for the Southern District of New York, Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp LLC, the employer sued a former employee to enforce a noncompete agreement. The employee inadvertently left his access information for his personal e-mail accounts on the company's computer when he left his job. The employer discovered this information, accessed the accounts and printed e-mails, including one from the former employee to his attorney. The employer believed that it had the right to access the accounts based on a handbook provision that read "e-mail users have no right of privacy in any matter stored in, created on, or received from, or sent through or over" the employee's work computer. The court disagreed and ruled the policy did not expressly cover employees' personal accounts. Consequently, the court found that the employee had a reasonable expectation of privacy in his private e-mail accounts and the employer's review of them violated the SCA.

In Stengart v. Loving Care Agency Inc., a 2009 New Jersey Superior Court decision, an employee exchanged e-mails with her attorney through her personal e-mail using her employer's computer and Internet server. The employer's written policy on electronic communications read "internet use and communication ... are considered part of the company's business" and "such communications are not to be considered private or personal to any individual employee." The court did not believe this language clearly applied to personal, password-protected Web sites and e-mail accounts accessed through the employer's computer system. Thus, the employee's use of the employer's computer system did not convert the e-mails into the company's property.

In Van Alstyne v. Electronic Scriptorium (2009), a 4th U.S. Circuit Court of Appeals sexual harassment decision, an employer accessed an employee's personal AOL account that she used for work and personal reasons. During litigation, the employer produced some of the employee's e-mails as part of its defense of the case. The employee countersued under the SCA, and a jury awarded the employee more than $400,000 in damages.

By contrast, in Borninski v. Williamson, a 2005 wrongful-termination case in the U.S. District Court for the Northern District of Texas, the court explained that an employer did not violate the SCA or the EPCA when it copied e-mails stored on the employee's company-issued computer hard drive and monitored the employee's Internet communications. Copying e-mails stored on the employee's company computer, the court explained, was not considered to be storage within the definition of the SCA. In any event, the access was authorized because the company exercised control over its computer equipment and Internet access, as most businesses do. Notably, the employer's Internet policy specifically stated Internet and Internet mail activity would be monitored while connections and data transmissions are in progress.

Against this backdrop, employers would be wise to ensure their policies recite clear language explaining that employees have no expectation of privacy in personal text messages sent or received on company-owned or reimbursed equipment such as BlackBerrys.

Charles H. Wilson is a management-side employment law associate with Epstein Becker Green Wickliff & Hall in Houston. He is board certified in labor and employment law by the Texas Board of Legal Specialization and defends employers in discrimination and harassment cases involving electronic communications.

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