It’s been the legal standard for awhile: Employers have the right to monitor employees’ e-mail and other electronic communication. But a recent court ruling sheds some doubt on that standard.

Here’s what happened:

An employer gave cell phones to a group of employees so they could communicate via text messages. The contract with the wireless provider said the company would be charged an overage fee if any phone sent more than a certain number of words in a given month. Employees had to reimburse the company for those charges.

After one employee went over his limit four times, the company obtained copies of his text messages from the wireless provider. The transcripts revealed the employee was sending a lot of personal messages — in fact, many of them were sexually explicit.

The employee sued, claiming his privacy was violated when the vendor provided — and the company read — his personal messages.

Stored Communications Act

The court’s decision: By releasing the messages, the wireless vendor violated the Stored Communications Act (SCA). The SCA makes it illegal for “electronic communications service providers” to release data without the sender’s consent.

The judge ruled that even though the company owned the phones, it didn’t have the right to access the messages, because they were handled and owned by a third-party provider.

What HR needs to know

What’s it mean for employers that monitor employee e-mail and technology use? That depends on how a company handles its electronic communications.

Companies often handle e-mail and other communication in-house and store the data on company-owned servers. But many employers outsource those operations to service providers. For those companies, rulings like this might limit their ability to monitor employees.

The court’s decision points out what companies may be able to do to maintain that ability. Here are some ways to keep an eye on employees while avoiding liability:

• Get consent. The lawsuit may have been avoided if the company had gotten written consent from all employees allowing their text messages to be monitored.
• Have a policy. The company had a policy saying e-mail and Internet use would be monitored, but never mentioned the cell phones. Therefore, the court ruled, employees had a “reasonable expectation of privacy” when it came to text messages.
• Enforce it. Even if the general computer policy covered text messaging, the employee paid the overage fee four times before the company looked at his messages — that fact alone could have been enough to establish an expectation of privacy.

Cite: Quon v. Arch Wireless Operating Co.

Tags: e-mail, electronic communication, monitoring, privacy, SCA, Stored Communications Act, text message