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  Off-Duty Discussion Groups Can Be Off-Limits to Employers.Fisher & Phillips, LLP - March 04, 2010 There is an inherent tension between an employee's right to privacy and an employer's right to monitor an employee's conduct – especially where the employer believes that the conduct may harm its business or otherwise subject it to liability. This tension has only grown with the rapid expansion of social media and the larger audience with which an employee may share his grievances. Report Link I Always Feel Like, the School Is Watching Me: Electronic Monitoring Gone Wrong?Young Conaway Stargatt & Taylor, LLP - February 19, 2010 Electronic monitoring is a very hot topic in employment law these days. But what about other types of electronic monitoring by employers? A case filed in the U.S. District Court for the Eastern District of Pennsylvania alleges a much more unusual sort of electronic monitoring. The suit alleges that Lower Marion School District distributed over 1,800 laptops to its students. So far, so good. 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 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 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 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 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 Can We Tape?Employment Law Information Network - (No Date) Reference site for information on tape recording phone calls.
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