Not so long ago, E-mail was just about it for electronic communications, and employer rules about its use could be simple and straightforward.
But electronic communications are rapidly evolving and the changes are forcing courts to confront the question of Fourth Amendment protection against unreasonable searches when employees send personal message on their employers’ electronic communications devices.
“In the recent past an employer could issue a general warning to employees that anything they wrote on their company-provided computer could be accessed by the company,” says #b#Kerrie Heslin#/b#, a partner with Nukk-Freeman & Cerra, a Short Hills-based law firm.
“Today we have texting, BlackBerries, cell phones, smartphones, laptops, and pagers. The courts are starting to second-guess employers and shed light on how they can monitor employee use of portable handheld devices and computers.”
Heslin and #b#Katherin Nukk-Freeman#/b#, co-founder and CEO of the law firm, will address what employers need to know about employee electronic communications during a webinar titled “Monitoring Employee Electronic Communications” on Thursday, August 12, from noon to 1 p.m. Cost: $129. Visit www.njicle.com.
A native of Bergen County, Heslin joined the firm as a partner nearly four years ago and has practiced law for 15 years. She devotes most of her practice to the litigation of employment issues involving discrimination, whistleblower claims, compensation and benefits on behalf of employers.
She graduated from Syracuse with a bachelor’s in finance and marketing in 1991 and earned her J.D. from Seton Hall in 1995.
Law wasn’t on Heslin’s mind when she began college. “My original plan was to major in finance and get a job in investment banking on Wall Street,” she says. “But after an internship, it didn’t capture my interest so I decided to add a second major in marketing. I wanted something that paid decent money and was challenging.”
Most of the available jobs, however, were in sales, so Heslin opted to go on to law school. “It was the right decision,” she says. “I love law and it’s a challenging field.”
Heslin’s father was a dentist while her mother stayed home. “My mother was one of five children — four girls and a boy,” Heslin says. “Being traditional Irish Catholics, her parents sent only the son — not the daughters — to college. My mom always wanted to go to college so she has been very supportive of me. She’s lived vicariously through my career.”
Heslin calls her own family “reverse traditional. My husband stayed at home until our two kids got a little older and then returned to his profession as a golf pro,” she says.
#b#E-mail confidential#/b#. In April the New Jersey Supreme Court addressed how much privacy and confidentiality employees might expect regarding their E-mails in Marina Stengart v. Loving Care, a home health-care agency.
Stengart used a personal, password-protected, web-based E-mail account on her company’s computer for her personal communications with her attorney.
The court decided that while her personal E-mails were largely fair game, those communications with her attorney were not.
“The company tried to use her communications with her attorney in its litigation against her,” Heslin says. “The court held that the employee does not waive her attorney-client privilege through her E-mails on the company computer because she had a reasonable expectation of privacy.” The court further ruled that an employer must turn over such privileged E-mail communications — unread — to the employee.
In June the U.S. Supreme Court ruled unanimously in favor of a police department in California after it audited the text messages sent on a city pager by a police officer. The court decided that government employees are not protected against searches of their electronic communications on devices provided to them as long as their employers have “a legitimate work-related purpose for looking.”
The decision represents only a preliminary effort to define public employees’ Fourth Amendment rights in the digital arena. The court declared that public employers have wide latitude to search their employees’ offices and files. But it also said that employees can still look to the Fourth Amendment for some protection of their privacy rights.
While the California case addressed only government employees, Heslin says, "we can extrapolate the ruling to mean it will similarly affect private employers, too.”
#b#What do these court decisions mean to employers#/b#? “These are among the first decisions in this area,” Heslin says. “There are now more onerous requirements for what employers can see and for what they can do with the information they access. I expect we will see many more decisions — these are the tip of the iceberg.”
Heslin used to recommend that employers create a general communications policy and reserve their right to review the communications put on the devices they provide to their employees. “Now an employer will no longer be able to get by with a one-size-fits-all policy on employee use of its communications devices,” she says. “Employers will have to take measures to protect themselves.”
Heslin suggests employers determine which employees have electronic communications devices, and what devices each has; analyze who needs which devices, and who needs access and how much access to the Internet; create a clear policy that carefully spells out what is and what is not subject to an audit for each communications device; establish a clear process for auditing its communications devices, which should be random and be performed periodically; and name an employee to oversee the auditing of the devices and provide that employee with the proper training to do the job well.
“Some employers want a policy that strictly prohibits the use of their communications devices for personal use,” Heslin says. “For most companies, that isn’t practical. Most companies permit some limited personal use because they understand employees will need to communicate some private information on company devices.”
The courts have yet to address many scenarios, such as employee communications that involve patient-doctor relationships and personal finances.
Sorry, is this your BlackBerry? “Employers must prepare a policy that covers all situations and all devices,” Heslin says. “For example, what if an employee connects his personal BlackBerry to his company computer? Each employer must create a policy that meets unique needs.”
For example, companies in highly regulated industries, such as finance and health, may want more aggressive policies that permit them to see all personal communications permitted by the law.
With an uncertain future in this area, Heslin advises her clients how to develop policies that comply with current laws and provides updates as new cases alter the law.
#b#Get involved#/b#. Despite the growing complexity of the law, employers can’t afford to take a hands-off approach, Heslin warns. “Companies have an affirmative duty to monitor the electronic communications between employees for harassment and discrimination,” she says. Failing to do so could expose companies to harassment and discrimination lawsuits.
She recommends companies perform audits randomly. Otherwise, they could be accused of discrimination or retribution by targeting an individual. Typically, employers have employees sign a statement acknowledging they have reviewed and understand the policy that pertains to private use of company communication devices.
“The policy statement is not considered a contract,” Heslin says. “But a good policy will put employees on notice because it spells out which areas they should have no reasonable expectation of privacy.”
That wording — “reasonable expectation of privacy” — is what the law hinges on, Heslin says. At least for right now.