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Report Link Court OKs Verdict Against Restaurant for Managers' Access of MySpace Account.Ford & Harrison LLP - January 29, 2010 Social networking sites today abound. MySpace was created in 2003 and rapidly became a social must-have for high school and college students alike. As a result, these students began to live their lives in an open fashion, posting everything from the mundane to the shock-worthy events of their lives for everyone to view and comment. Accordingly, today's employees may find it hard to differentiate between online life and offline life, since to them it is all merged. This becomes problematic for employers when these employees take to their social networking site, be it MySpace, Facebook, Twitter or a blog, to air frustrations with their job or their company to a mass audience. Report Link U.S. Supreme Court to Review Text Messaging Case.Ford & Harrison LLP - January 29, 2010 For the first time, the U.S. Supreme Court will address the rights of employers to review text messages sent by and to employees on employer-provided equipment. See Quon v. Arch Wireless Operating Co., Inc. (9th Cir. 2008), cert. granted, 12/14/09. In Quon, the Ninth Circuit held that the City of Ontario violated a city employee's Fourth Amendment privacy rights when it read the employee's text messages. The messages were sent by the employee (a police officer and member of the city's SWAT team) from a text-messaging pager purchased and provided by the city and were stored by an outside service provider. Report Link For Your Eyes Only: Employee Privacy on Employer Systems.Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - January 29, 2010 Where is the line between an employee's right to privacy and an employer's right to monitor its employees while on company time or using company equipment or networks? How is an employer charged with preventing harassment supposed to effectively monitor the large volume of communications between its employees? While the law has yet to establish bright-line answers to these questions, recent legal developments provide some guidance. Report Link U.S. SUPREME COURT TO DECIDE IF EMPLOYERS MAY REVIEW EMPLOYEE TEXT MESSAGES.Ballard Rosenberg Golper & Savitt - January 22, 2010 The U.S. Supreme Court will decide this term whether employers can review the text messages that employees send on their employer-issued cell phones, Blackberries, or pagers. In the case in question, Quon v. Arch Wireless, the Ninth Circuit U.S. Court of Appeals ruled that the City of Ontario, its Police Department and Police Chief violated an employee's right to privacy by reviewing text messages which were sent to and from an employee's Department-issued pager. Report Link Workplace Privacy: Not Just a Problem for Erin Andrews.Fisher & Phillips, LLP - September 02, 2009 With the disclosure of personal information now rampant on social networking sites like Facebook and Twitter, it sometimes seems like privacy is a relic of the past. Don't be fooled: privacy is a hot legal topic with serious implications for employers. Report Link FTC Announces Delay in Implementation of Red Flags Rule.Ford & Harrison LLP - August 06, 2009 The Federal Trade Commission (FTC) recently announced that it is postponing implementation of the Red Flags Rule until November 1, 2009, in order to provide businesses with more education about compliance with the Rule. This will include additional resources and guidance to clarify whether businesses are covered by the Rule and, if so, what they must do to comply. Report Link The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities.Littler Mendelson, P.C. - July 16, 2009 On July 7, 2009, in the ongoing saga involving the ability of employees to use their employer's e-mail systems for union-related activities, the D.C. Circuit Court of Appeals reversed a portion of the National Labor Relations Board's (NLRB) landmark decision in Register-Guard1 and concluded that the newspaper unlawfully discriminated against an employee for sending three e-mails to coworkers that discussed union matters. In Guard Publishing Co., d/b/a The Register-Guard v. N.L.R.B., No. 07-1528 (D.C. Cir. July 7, 2009), the D.C. Circuit agreed with the NLRB's conclusion that an employee cannot be disciplined for merely "communicating" about an organization or a union if the policy only prohibits "soliciting" on behalf of organizations. However, the court squarely rejected the NLRB's finding that the newspaper did not discriminate against the same employee for sending two e-mails that clearly constituted "solicitations" under the newspaper's policy, reasoning that the employer's history of enforcing the policy demonstrated that the discipline was discriminatory. Report Link Verdict Against Houston's Restaurant Demonstrates Risks of Accessing Employee's Restricted Social Networking Sites.Littler Mendelson, P.C. - July 15, 2009 Ranting on the Internet about one's employer has become commonplace. When complaints are posted on a publicly accessible Internet page, employers have the same right as anyone in the general public to access the posting, and, except in limited circumstances, can take adverse action based on the posting's content. Report Link Keylogging Employees' Computer Use Met with Judicial Wariness.Jackson Lewis LLP - June 08, 2009 A plaintiff who alleged his employer committed an impermissible “interception” under the Electronic Communications Privacy Act (ECPA) by using keylogging to discover the password to his personal e-mail account, and then, using the logged password, accessed his personal e-mail may proceed with his case, the U.S. District Court for the Northern District of California has ruled. While the court in Brahmana v. Lembo did not conclude that the employer violated ECPA, employers, particularly those in California, might do well to revisit how they use keystroke monitoring or logging technology in light of this ruling. Report Link Recent Fourth Circuit Ruling Demonstrates Risks to Employers of Accessing Employees' Personal E-Mail Accounts.Littler Mendelson, P.C. - April 22, 2009 In a cautionary tale for all employers, the United States Court of Appeals for the Fourth Circuit recently held in Van Alstyne v. Electronic Scriptorium Limited that an employer who accessed a former employee's personal e-mail account could be held liable for punitive damages and attorneys' fees under the federal Stored Communications Act (SCA), even without proof of any actual damages. Notably, this ruling narrowly construed the available remedies under the SCA by holding that minimum statutory damages of $1,000 per violation can be recovered only with proof of actual damages. By contrast, three federal district courts previously had ruled that statutory damages (in addition to punitive damages and attorneys' fees) can be recovered even without proof of actual damages. Report Link Data Security Breaches and Privacy Incidents (pdf).Vedder Price - August 19, 2008 Companies have developed
new ways to create, store,
access, use and LOSE data.
Indeed, since January 2005,
the Privacy Rights
Clearinghouse has reported
that more than 1,000 data
breaches have occurred,
involving more than 220 million
records. In reality, the number
of actual data breaches is much
higher, given that not all
incidents are reported. Notably,
however, in just the fi rst quarter
of 2008, 167 data breaches
have been reported, involving
8.3 MM fi nancial and consumer
records. A data breach or loss
can occur in a variety of ways: Report Link Business Travelers Beware: New Customs Policy Allows the Government to Search Documents, Laptops and Other Data Storage Devices at the Border.Baker Hostetler LLP - August 11, 2008 Next time you travel outside the United States, don't be surprised when U.S. Customs and Border Protection agents give your laptop a closer look than ever before. According to a policy announced on July 16, 2008, Customs agents have authority to conduct searches at the border of information contained in documents and electronic devices such as laptops and flash drives, even without any suspicion of wrongdoing or unlawful activity. There is no distinction between foreigners and Americans. The new policy allows Customs to search, copy, retain, and share information from computers, disks, hard drives, electronic or digital storage devices, as well as documents, books, pamphlets, and other printed materials. Officers may detain documents and electronic devices for as long as they deem necessary and reasonable to perform a thorough search, either on or off site. Customs may share the documents or electronic devices with other federal agencies or entities for translation, decryption, or subject matter assistance, without notice. Report Link Employee Privacy Update: Review Of Employee Text Messages Deemed Invasion Of Privacy.Barker Olmsted & Barnier - July 11, 2008 Workplace privacy rights can be tricky. Consider the following scenario: A company provides two-way alpha-numeric pagers to employees. The pager service plan allows for transmission of 25,000 characters per month, beyond which an overage fee is assessed. Report Link Employee Text Messages Are Not Inviolate: Understanding and Navigating the Ninth Circuit's Decision in Quon v. Arch Wireless Operating CompanyLittler Mendelson, P.C. - July 09, 2008 The headlines proclaiming the end of employer monitoring have vastly overstated the impact on the workplace of the Ninth Circuit's ruling in Quon v. Arch Wireless Operating Company. To be sure, the case holds that the Stored Communications Act prohibits third-party service providers, such as text message services and Internet service providers, from disclosing stored electronic communications without the consent of the employee who sends or receives the communication, even if the employee is using employer-provided equipment and the employer pays for the service. Nonetheless, and as explained more fully below, employers can easily and lawfully navigate this restriction. Report Link Employees Have Right to Privacy in Text Messages, Court of Appeals Rules.Jackson Lewis LLP - July 01, 2008 A police officer and the individuals with whom he communicated had a reasonable expectation of privacy in text messages sent from pagers provided by the employer, the U.S. Court of Appeals for the Ninth Circuit has ruled. Quon v. Arch Wireless Operating Co., Inc., No. 07-55282 (9th Cir. June 18, 2008). The employer, it said, violated the plaintiffs' rights under the Fourth Amendment of the U.S. Constitution and the California Constitution by reviewing text messages without the plaintiffs' consent. Accordingly, the court held that the plaintiffs prevailed as a matter of law and reversed the lower court's judgment in favor of the employer. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Report Link Review of Employee Text Messages Deemed Invasion of PrivacyBarker Olmsted & Barnier - June 24, 2008 Employers may violate constitutional privacy rights by reviewing employee text messages delivered on company-provided equipment, according to a Ninth Circuit Court of Appeals. Report Link Navigating the Personal Information Maze (pdf).Jackson Lewis LLP - June 23, 2008 It’s all in a day’s work: employers collect individuals’ most
sensitive and private personal information. From Social
Security numbers to fingerprints, health records to financial
data, this information enters the province of employers
for use in the normal course of business. Dramatic headlines
have spotlighted the vulnerability of this personal data
and the potential for liability if it is not secure. Inadvertent
data loss, security breaches, unauthorized disclosures, and
theft have led governments worldwide to enact laws and
regulations designed to balance legitimate business needs
for sensitive personal information with individual interests
in keeping it safe. Report Link International Personal Information Flow, Privacy, and Security.Jackson Lewis LLP - June 03, 2008 Employers must consider the requirements of international privacy laws when transferring employees’ personal information across national borders, even if within the same company. Dramatic and frequent headlines of inadvertent data loss, security breaches, unauthorized disclosures, and theft have put a spotlight on the vulnerability of data repositories. Predictably, governments worldwide have enacted laws and regulations designed to balance legitimate business needs for personal information with individual interests in keeping that information safe. Report Link International Business Travelers May Face Warrantless Laptop Searches by U.S. Border Agents.Jackson Lewis LLP - May 12, 2008 Federal border agents did not violate the U.S. Constitution’s Fourth Amendment prohibition against unreasonable searches in examining the contents of a traveler’s laptop without any basis for believing the device contains contraband, a federal appeals court in San Francisco has ruled. United States v. Arnold, No. 06-50581 (9th Cir. Apr. 21, 2008). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Report Link Liability for Data Security Breaches Expanding (pdf).Vedder Price - May 02, 2007 On January 17, 2007, a computer hacker accessed the
computer systems of TJX Companies, Inc., a parent
company of T.J. Maxx, Marshall’s and other retailers,
and stole sensitive and confidential information
communicated during customer transactions dating
back to 2003. Fraudulent use of this stolen information
has thus far been detected in Florida, Georgia,
Louisiana, Hong Kong and Sweden. As a result of
this incident, numerous class actions have been fi led
against TJX on behalf of consumers whose information
was stolen. Report Link Bills Banning "Pretexting" And Protecting Veteran Data Clear Congress.Jackson Lewis LLP - December 21, 2006 Two privacy and data security measures affecting employers received legislative approval as the 109 th Congress draws to a close. One measure would criminalize certain corporate investigative methods. The other measure would require data security provisions be included in contracts between the Veterans Administration and private sector service providers. Report Link California's Supreme Court Requires Employers Nationally to Re-Examine Telephone Monitoring Policies and Practice.Littler Mendelson, P.C. - August 03, 2006 In a unanimous decision with national implications, the California Supreme Court ruled July 13, 2006, in Kearney v. Solomon Smith Barney, Inc. ("SSB"), that out-of-state businesses are prohibited from secretly monitoring or recording their telephone calls with California residents, even if that conduct takes place in any of the 38 states (and the District of Columbia) where only one party's consent is required to lawfully monitor or record a telephone call. The ruling, at a minimum, will require all employers whose employees communicate by telephone with any of California's 36 million residents to re-examine their policies and practices for monitoring and recording telephone calls. The decision most likely will have an even broader impact as the highest courts of the 11 other states which, like California, prohibit monitoring or recording telephone calls without the consent of all parties to the communication, are likely to follow California's lead when interpreting their own states' privacy laws. Report Link Court Finds Employer Has Duty to Third Party to Act on Knowledge that Employee Accessed Pornography at Work (pdf).Ford & Harrison LLP - March 07, 2006 A New Jersey appeals court has permitted
a plaintiff to proceed with her negligence
claims against her ex-husband’s employer
based on allegations that the employer knew her
ex-husband was accessing pornography at work
and had a duty to investigate and report this access
to the proper authorities. Report Link Prohibiting Porn in Your Workplace Is Not Enough: New Jersey Court of Appeals Imposes New Duties on Employers Who Engage in Electronic Monitoring.Littler Mendelson, P.C. - February 02, 2006 In a precedent-setting decision, the New Jersey Court of Appeals held on the eve of 2006 that employers have a duty to uncover and stop an employee's use of corporate electronic resources for child-porn activities once the employer knows, or should know, that an employee is accessing adult pornography. If followed in other jurisdictions, this case, Doe v. XYC Corp., No. A-2909-04T2 (N.J. Super. Ct. Dec. 27, 2005), could provide the basis for a whole new genre of employment litigation that seeks to hold employers responsible for the damages to victims of crimes committed by employees using corporate electronic resources. At a minimum, the case provides an important reminder that an employer who is put on notice that its employees are utilizing the company's electronic resources for nonbusiness purposes should take steps to ensure that the use does not include accessing pornography, or worse. Report Link Employee Monitoring: How Far Can Employers Go?Jackson Lewis LLP - February 04, 2005 E-mail, Instant Messaging, global positioning systems, telephone systems, and video cameras have given employers new ways to monitor the conduct and performance of their employees. If not done properly, however, new technology can lead to new sources of employer liability. Report Link Employer's Unauthorized Access To Employee's Website May Violate Federal Statute.Ballard Rosenberg Golper & Savitt - September 01, 2002 The Ninth Circuit ordered a jury trial where an employer's alleged use of false pretenses to access an employee's website violated the federal Stored Communications Act, which prohibits unauthorized access to an "electronic communication service." Report Link Employee Monitoring, Investigations and Privacy Matters.Jackson Lewis LLP - November 21, 2001 Among the ways employers can retain more control over what happens at their workplaces is to monitor the actions of employees. However, there are many restrictions, both practical and legal, on what measures employers can lawfully take to monitor workplace behavior. Report Link e-trends: more companies are monitoring e-mail.Fredrikson & Byron, P.A. - March 01, 2000 Brief discussion regarding the increase in employer electronic monitoring of employee e-mail (including some AMA statistics). Report Link workplace privacy: four key principles to follow. Fredrikson & Byron, P.A. - January 01, 1997 Provides tips for employers to ensure that they do not violate employee privacy rights. Report Link Can We Tape?Employment Law Information Network - (No Date) Reference site for information on tape recording phone calls.
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