Caution For Employers Regulating Employee's Internet Activity

Recently, the National Labor Relations Board sued American Medical Response of Connecticut Inc. (AMR) on behalf of an employee who was fired for making negative comments about AMR on the Internet. The NLRB argued that the conduct of the employee was protected as free speech under federal labor laws. The NLRB settled the case with AMR.  In addition to paying a confidential settlement to the employee, the company has also agreed to change its blogging and Internet policy so that it no longer prohibits employees from disparaging the company or depicting the company in any way without prior approval from the company. While this case involves federal labor laws, the settlement should be a warning to California employers who have similar Internet prohibitions as California law provides that employers cannot restrict an employee’s legal off-work activities.

First off, in California, Article I, Section I of the California Constitution guarantees citizens a right of privacy:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

This right to privacy carries over to the workplace, but is even more protected when the employee is conducting personal activities during non-working hours. Furthermore, section 96(k) of the Labor Code provides that the California Labor Commissioner may assert on behalf of employees:

Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

For example, in Barbee v. Household Automotive Finance Corp. (2003), a court provided some guidance about the ramifications of section 96(k). Barbee was dating a subordinate at work, which violated the company’s policy and created a conflict of interest. The company gave Barbee and the employee with whom he was involved the option that one of them had to resign or to end the relationship. Barbee refused to resign, and they did not end the relationship, so the company terminated Barbee. Barbee sued, arguing that the company violated Labor Code section 96(k) in that his employer was regulating his lawful conduct during personal time. The court rejected Barbee’s argument in stating:

We conclude that Labor Code section 96, subdivision (k) does not set forth an
independent public policy that provides employees with any substantive rights,
but, rather, merely establishes a procedure by which the Labor Commissioner
may assert, on behalf of employees, recognized constitutional rights. Therefore,
in order to prevail on his wrongful termination claim, Barbee must establish that
his employment was terminated because he asserted civil rights guaranteed by
article I of the California Constitution. We conclude that Barbee cannot make this showing and therefore he cannot establish the first necessary element of his wrongful termination claim.

While the court held that the company’s actions in that case did not violate section 96(k), the facts were very favorable to the employer, and there are other arguments available to employees. For example, an employee may also argue violation of Labor Code Section 98.6 which states in part that “no person shall discharge any employee ... because the employee … engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 ….” An employer may, however, prohibit an employee from any disclosures on the Internet that would be illegal, disclose confidential information, or violate another individual’s (such as co-workers or customers) right to privacy. But with this recent case making national headlines, it is certain that litigation concerning what employees conduct an employer can and cannot regulate on the Internet will be prevalent over the next few years.

Can Employers Monitor Employee's Text Messages Sent Through Company Owned Devices?

 

In Quon v. Arch Wireless Operating Company, Inc., (June 2008), City of Ontario police department employees, and one employee's wife, brought a Fourth Amendment action against their employer, in connection with the department's review of employees' text messages, and asserted claim against wireless communications provider under Stored Communications Act (SCA). 

The facts of the case would seem to dictate that the City/employer was acting within its rights to review the employees’ text messages sent and received through the employer-issued PDA. While the City did not have a policy on point with regards to the pagers issued to the officers, the City did have a general “Computer Usage, Internet and E-mail Policy” applicable to all employees.  The policy stated that “[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy.” The Policy also provided:

C. Access to all sites on the Internet is recorded and will be periodically reviewed by the City. The City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.

D. Access to the Internet and the e-mail system is not confidential; and information produced either in hard copy or in electronic form is considered City property. As such, these systems should not be used for personal or confidential communications. Deletion of e-mail or other electronic information may not fully delete the information from the system.

E. The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated.

Furthermore, the plaintiff signed an Employee Acknowledgement that he “read and fully understand the City of Ontario's Computer Usage, Internet and E-mail policy.” The Employee Acknowledgment also stated that “[t]he City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice,” and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.” Furthermore, two years later, the plaintiff attended a meeting during which a supervisor informed all present that the pager messages “were considered e-mail, and that those messages would fall under the City's policy as public information and eligible for auditing.” 

These steps sound like they should protect the City and allow the employer to review the contents of the messages – right? Wrong.

The Ninth Circuit appellate court held that while the written policies lowered the employee’s expectation of privacy in regards to the content of the text messages, the “operational reality” (i.e., the supervisor’s laziness) change this expectation. The court reasoned that the employer established an “informal” standard of not reviewing the contents of the text messages as long as the employees paid for any overages that were incurred under the wireless plan. In fact, Plaintiff exceeded the texting plan on four occasions, he paid for the overages out of his own pocket, and the employer did not audit the content of the messages. Therefore, the court reasoned, this provided an expectation of privacy for the employees in the contents of the text messages. 

What are employers to do?

While the employer in the Quon case was the government, implicating a heightened privacy interest of the employees under the Fourth Amendment, the case still provides some good lessons for private employers:

  • Employers should have well drafted written policies that are up-to-date and deal with any new technologies that are being used in the workplace. 
  • Once appropriate written policies are in place, audit the content of employee’s communications over company-owned devises and document these audits to avoid the trap the employer fell into in this case. The employer should take steps to ensure that there is not an “informal” policy established due to the hardship of conducting audits that would give the employees an expectation of privacy in communications conducted over company-owned devises.