Inspecting Employees' Emails and Facebook Postings

In Your Workplace Investigation, Can You Consider the Complainant's Facebook Page and Personal Emails?

Maybe.

The Internet has transformed communications as evidenced by the current estimate that over 210 billion emails are sent daily, 50 million tweets are sent daily, and over 1.5 trillion text messages were sent in 2009. Social networking is here to stay. So employers need to stay abreast of changes in the courts' views on employer access. Notwithstanding the recent U.S. Supreme Court holding in the Quon case(see last post), there is a trend by courts across the country to extend more and more privacy rights to employees' use of electronic communications in the workplace.

A. Facebook
On May 11, 2010, a federal court in Indiana held that during the discovery phase of their trial, two plaintiffs had to turn over all Facebook and MySpace postings for the past three years. The plaintiffs were claiming to suffer from post traumatic stress disorder, and the court reasoned that pictures and statements the plaintiffs had posted might be relevant to their mental state during the relevant time period. EEOC v. Simply Storage Management, S.D. Indiana (May 11, 2010).

Of course, the holding sets precedent only in Indiana, but the reasoning utilized gives some comfort to employers who review this type of SNS (social networking sites) information when investigating a complaint.

B. Personal Emails

A 2009 study revealed that more than 52% of employees check and use their private email accounts while using their workplace computers. Does this mean that during an investigation, an employer can access these private emails sent through accounts such as hotmail and gmail? The answer is no according to an opinion from a New Jersey appeals court.

In Stengart v. Loving Care Agency, et al., 2010 WL 1189458 (N.J. Mar. 30, 2010), the court held, “Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets.”

In deciding whether an investigative search is permissible, courts generally take into account whether there is an explicit email monitoring policy, what the terms of the policy explicitly say, and whether the employees are aware of it.

Bottom line, you should check with counsel before searching an employee's personal email messages because these situations can present great risk for employers.

I'll be discussing these issues and more at the South Texas Employment Law Conference in Houston on July 14-15, 2010. Come and say hello!