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While advances in technology allow employers to gain almost unfettered access to employees’ e-mail and to monitor employees’ Internet use, the law may not. The New Jersey Supreme Court has held that New Jersey employees have a right to privacy in the workplace. It is, therefore, crucial for employers to understand the contours of that right, and the ways in which they can search and monitor employees in the electronic workplace without violating the rights of their employees. In a recent survey conducted by the American Management Association, one out of every five companies reported that they had terminated an employee for an e-mail related infraction. While some of these infractions may have been relatively innocuous, i.e., shopping online during work hours, others are, undoubtedly, much more serious. E-mail and the Internet may be the portal through which a company’s most valued trade secrets are leaked to a competitor or through which a potentially devastating computer virus enters a company’s network. Also, employees who use e-mail for improper purposes, such as to harass co-workers, may subject their employers to suit under vicarious liability principles. Indeed, in the same American Management Association survey, one out of 20 companies reported that they had been subjected to a workplace lawsuit triggered by e-mail. There are myriad ways in which employers can search and monitor employees’ use of employer-provided e-mail and Internet access. Employers can now purchase technology that can: (1) monitor and record each key punched by an employee on his or her computer keyboard; (2) search through a company’s archived e-mail and retrieve e-mails that contain certain red-flagged words; and (3) block employees from accessing certain Web sites. But beware of the privacy rights of employees before taking any action. The New Jersey Supreme Court first recognized an employee’s right to privacy in the workplace in the case of Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81 (1992). James Hennessey worked for defendant Coastal Eagle Point Oil Company in an oil refinery in Westville. After discovering evidence of marijuana use at the refinery, Coastal Eagle instituted a random drug testing policy. Hennessey was tested and failed. Hennessey did not contest the accuracy of the test, but claimed that he had been “wrongfully terminated” because the test itself violated his right to privacy. The court first held that Hennessey did have a right to privacy in the workplace, deriving both from the common law and the New Jersey Constitution, that could support the basis for Hennessey’s wrongful termination claim. The court, however, held that an employee’s right to privacy, though important, is not absolute and is subject to a “weighing of competing interests.” The court concluded that because Coastal Eagle had used a drug testing method designed to minimize intrusiveness and because the public has an important interest in ensuring that workers in safety-sensitive positions are drug-free, Coastal Eagle had not violated Hennessey’s right to privacy. INVASION OF PRIVACY CLAIMS UNDER THE COMMON LAW Hennessey paved the way for employees to assert so-called “invasion of privacy” claims against their employers. New Jersey common law recognizes four distinct types of invasion of privacy claims: (1) unreasonable intrusion; (2) commercial appropriation of one’s name or likeness; (3) public disclosure of private facts; and (4) publicity which places the plaintiff in a false light in the public’s eye. The claim that is far and away the most likely to be asserted in the employment context is the first — unreasonable intrusion. One of the first courts to analyze the application of this claim to intrusions into electronic environments is White v. White, 344 N.J. Super. 211, 223 (Ch. Div. 2001). Although White involved a motion to suppress an e-mail in the context of a divorce action, its holding is instructive for understanding the application of this tort claim to the workplace. In White, the plaintiff-husband filed for a divorce but continued to reside with the defendant, sleeping in the sun room. The family computer also was located in the sun room. Unbeknownst to the husband, while the divorce action was proceeding, the defendant hired an investigator to search the computer’s hard drive. The investigator compiled a disk of e-mails sent from the plaintiff to his girlfriend, as well as various images that he had viewed on the Internet. Not until he was deposed did he learn that his e-mail account had been accessed. Until that point, he had mistakenly believed that his e-mail could not be accessed without his password. The husband sought to suppress the contents of his e-mails, claiming that the investigator’s entry into his computer files constituted an unreasonable intrusion on his seclusion. The court disagreed. An intrusion into a person’s seclusion, the court explained, was not actionable unless the intrusion was “highly offensive to a reasonable person.” That question, in turn, depended on whether the victim of the intrusion had a reasonable expectation of privacy over the intruded area. Here, the court held, the plaintiff had no such reasonable expectation of privacy with respect to the family computer. The plaintiff could not have an objectively reasonable expectation that the computer was private given that all members of his household, including the defendant and the parties’ three children, regularly entered the sun room and accessed the computer. STATUTORY PROTECTIONS In his efforts to suppress his amorous e-mails, the plaintiff in White also claimed that his wife’s access to his e-mail violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1, et seq. The act was amended in 1993 to conform to changes made to the federal law and is now substantively identical to the federal Electronic Communications Privacy Act, 18 U.S.C. 2701, et seq. Both statutes, state and federal, prohibit the unauthorized access of electronic communications. Several exceptions may apply, however, in situations where an employer accesses an employee’s e-mail. For example, the acts do not prohibit an employer’s access to employee communications if the employee consents, either expressly or impliedly, to the access. Also, where the employer is the provider of the e-mail system, and the employer accesses stored e-mail as opposed to e-mail seized on transmission, the employer will be exempt from liability. In White, for example, the court explained that although the New Jersey wiretapping law prohibits the unauthorized access of electronic e-mail while it was in electronic storage, the phrase electronic storage is defined by the act to include only “temporary, immediate storage of a wire or electronic communication,” and does not include e-mail stored permanently on the computer’s hard-drive. Because the investigator in that case accessed only e-mail that was stored post-transmission on the computer’s hard drive, the court held that there had been no violation of the act. This holding has been thrown into some question by a recent decision by the 3rd U.S. Circuit Court of Appeals, Frasier v. Nationwide Mutual Ins. Co., 352 F.3d 107 (3d Cir. 2003). In that case, Nationwide suspected that the plaintiff, an insurance agent, was soliciting business from Nationwide’s competitors in violation of plaintiff’s exclusive representation agreement. Nationwide conducted a search of plaintiff’s e-mail stored on Nationwide’s file server and found e-mails that allegedly confirmed the plaintiff’s disloyalty. Nationwide terminated the plaintiff’s employment and the plaintiff filed suit against Nationwide under the federal Electronic Communications Privacy Act. The District Court granted summary judgment to Nationwide on the ground that e-mail in post-transmission storage was not protected by the act. The 3rd Circuit, however, was not convinced, stating that it “seems questionable” that e-mails stored on Nationwide’s file server were not in “electronic storage” within the meaning of the act. Ultimately, the circuit court affirmed on a different ground, holding that, because Nationwide was the administrator of its own e-mail system, it was permitted to access e-mail stored on that system under § 2701(c)(1) of the act. Although the New Jersey wiretapping law contains an analogous provision to § 2701(c)(1) of the federal law, it remains to be seen whether New Jersey courts will construe that exception as broadly as the 3rd Circuit. If a single lesson for employers can be derived from cases construing common law invasion of privacy claims, such as in White, and the cases under the state and federal wiretapping laws, it is the importance of implementing and distributing to employees a comprehensive electronic communications policy. As noted, the touchstone for whether an intrusion into an employee’s computer constitutes an unlawful invasion of privacy is whether the employee has an objectively reasonable expectation that his computer is private. Employers can eliminate any such expectation by distributing an electronic communications policy that tells employees, in unmistakable terms, that their computers may be monitored by the employer. Similarly, the most significant exception to the New Jersey and federal wiretap laws is that an otherwise prohibited search will be lawful if it is consented to by the employee, either expressly or impliedly. Having employees sign a copy of the employer’s electronic communications policy will go a long way towards ensuring that an employer’s search of an employee’s computer will fall within this exception. MONITORING COMMUNICATIONS By now, most employers understand the need to have in place an electronic communications policy that expressly reserves the employer’s right to inspect employees’ computers. As one court recently commented, the abuse of access to workplace computers by employees is so ubiquitous that “reserving a right of inspection is so far from being unreasonable that the failure to do so might well be thought irresponsible.” Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2001). Having such a policy, in and of itself, may not be sufficient, however. If employees learn that, in practice, an employer does not routinely monitor employee’s e-mail despite its right to do so, employees may arguably develop an expectation that their e-mail is private in spite of the language of the policy. Also, where an employer has reason to suspect that an employee is using e-mail or Internet access for invidious purposes, such as to harass a co-worker, employers may not only have a right to inspect an employee’s electronic communications, they may have a duty to do so. In Blakey v. Continental Airlines, Inc., 164 N.J. 38 (2000), for example, a female airline pilot claimed that other pilots had posted a series of harassing and defamatory messages about her on an Internet bulletin board known as the “Crew Members Forum.” This forum was accessible to all Continental pilots and crew members via a link on Continental’s “Home Access Program.” The trial court granted Continental’s motion for summary judgment and dismissed the plaintiff’s hostile work environment claim, holding that Continental could not be vicariously liable for the comments of its employees made on the forum. But the New Jersey Supreme Court reversed, holding that if the forum was sufficiently integrated into the workplace and Continental had notice of harassment in the forum, then Continental had a duty to remedy that harassment. The court remanded to the trial court for further findings of fact. It seems increasingly clear that employers not only can lawfully access employer-provided e-mail and Internet access, but that they should do so, at least where there is reason to suspect employee wrongdoing. Employers that step foot into this virtual environment must, however, be careful where they tread. For example, while an employer may confidently search employer-provided e-mail accounts with little fear of liability, what happens when an employee sends or receives e-mail at work via a personal e-mail account? In one recent case, Fischer v. Mt. Olive Lutheran Church, Inc., 207 F. Supp.2d 914 (W.D. Wis. 2002), a federal court suggested that an employer’s search of such a private e-mail account, even when it was accessed by the employee at work, may violate an employee’s right to privacy. Moreover, an employer must be careful about what it does with any information it discovers when monitoring employees’ electronic communications. An employer that discloses private facts about an employee to a third party, for example, may be liable to the employee under the common law tort of “public disclosure of private facts.” It is important to note that such private facts are not limited to potentially salacious information (such as evidence of extra-marital relationships), but may include more mundane facts about an employee, such as an employee’s Social Security number or home address. (See Doe v. Poritz, 142 N.J. 1 (1995)). Employers also must be careful to avoid claims that they are selectively enforcing an electronic communications policy. For example, in In re St. Joseph’s Hospital, 337 NLRB 12 (2001), the National Labor Relations Board found that an employer violated the National Labor Relations Act when it permitted employees to program personal messages into their computer screen savers, yet disciplined one employee whose screen saver contained a pro-union message. Employers that selectively enforce electronic communications policies may open themselves up to claims of discrimination. While the misuse of employer-provided technology by employees in the workplace can have devastating effects on an employer, there is no need to cancel the company’s e-mail account. A carefully drafted and consistently applied policy for monitoring employees’ use of workplace technologies can greatly reduce the risks that come with doing business in the modern electronic workplace. DelDuca is a partner in the labor and employment and health groups and Kelly is an associate in the labor and employment group at Dechert (www.dechert.com) of Princeton. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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