You helped lead a discussion that in part focused on information contained in social networking sites. Let’s say one employee notices another employee admit to illegal drug use on a social networking site. Can an employer who runs a drug-free workplace use that against an employee, especially if the employer can’t access the employee’s page?
The law in this area is rapidly developing and fascinating. Some recent cases have found that an employer’s use of information contained on a password protected or private Web site without proper authorization constitutes a violation of an employee’s right to privacy as well as a violation of the Stored Communications Act. In your scenario, the employer is not accessing the Web site directly. Rather, an employee — presumably with authorization to access the Web site — is reporting the conduct to the employer. In a recent New Jersey case, Pietrylo v. The Hillstone Restaurant Group, a similar situation arose. There, employees had a private Web site where they posted comments about their workplace many of which were critical of the company and their managers. One employee shared the password with management, and management became aware of the content on the Web site. The employees were discharged based on the content of the postings. The court held that the employer had violated the employee’s right to privacy and the Stored Communications Act. In your scenario, the conduct in issue is off-duty conduct, which may create additional legal concerns for an employer if action is taken against the employee. [Connecticut] does not prohibit termination based on off-duty-conduct, [so] an employee has a greater expectation of privacy with respect to conduct occurring off duty. As a result, if an employer were to take action based on the evidence obtained from a password-protected Web site about an employee’s off-the-job behavior, the employer could face claims for invasion of privacy among other things.
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How much leeway does an employer have when it comes to employee monitoring? Does it have to be disclosed before it’s done?
In Connecticut, by statute, employers must notify employees that their electronic communications will be monitored before they can monitor. Notifying employees that their e-mail and/or other electronic communications will be monitored is also good practice to avoid invasion of privacy claims. It has generally been the rule that an employer could monitor systems that it owned and that an employee had no expectation of privacy. Some recent cases, however, have recognized that monitoring is not without limitations. In a case out of the Ninth Circuit, Quon v. Arch Wireless, the court ruled that a municipality’s review of text messages sent by police officers on pagers provided by the city was an invasion of privacy and a violation of the officer’s Fourth Amendment rights. In Quon, the court found it significant that the city had allowed the officers to use the pagers for their personal use and told them that they would not review their personal messages provided that the officers paid overage charges if any were incurred. In short, we are seeing judicially imposed limitations on an employer’s unfettered right to monitor e-mails. Employers have to become familiar with these trends and modify their practices accordingly.
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What is the best way for employers to protect confidential information and other intellectual property?
There is not one best way to protect confidential information and other intellectual property. In some cases, patents, trademarks and copyrights provide the best protection. In others treating the information as a trade secret — ala Coca Cola formula — is the best option. Provided you can maintain the secrecy of the information, it is protected forever. Whenever a business believes its intellectual property has value, an IP lawyer should really be consulted early.
