Employees' Right to Privacy

Most employers provide fair warning to their employees that the employees should not have any expectation of privacy for any communications they send or receive using the company's computer. Employees can usually find these warnings in the employee handbook. Communications from a company computer - even if made on an employee's personal email account - can become property of the employer.

But employers need to be aware of the limits of such a policy. Under the federal Stored Communications Act (SCA), an employer may not intentionally access an electronic communication service's facility without authorization, or exceed such authorization, to obtain an electronic communication while it is electronically stored in such a facility. In plain English, the SCA forbids an employer from hacking into an employee's personal email account at AOL, Yahoo, or Google to obtain archived emails, even if the employee sent or received those emails on a company's computer.

Employers who violate the SCA could be liable to the employee for the employee's actual, out-of-pocket damages caused by the violation, plus any profits the employer may have derived as a result of the violation. The court may also assess punitive damages against an employer who willfully or intentionally violated the SCA, and award the employee reasonable attorney's fees and costs. The employee may also have a claim under Ohio law against the employer for invasion of privacy.

A recent case out of the District Court for the Southern District of New York illustrates how an employer may run afoul of the SCA. In Pure Power Boot Camp v. Warrior Fitness Boot Camp, an employer accused a former employee of stealing trade secrets. The former employee had used the employer's computer to send and receive personal emails on the employee's personal Hotmail account. The employee had stored the password for access to his personal Hotmail account on the company's computer, so the employer was able to easily access the employee's personal emails through Hotmail.

Pure Power Boot Camp ruled that the emails stored on the Hotmail system were electronic communications the the SCA protected. The employee's use of the employer's computer to receive and send personal emails did not authorize the employer to access the employee's emails electronically stored by Hotmail. Therefore, the employer's access to these stored emails violated the SCA.

The Court noted that emails stored on a personal computer do not fall under the SCA. A personal computer is not the equivalent of an electronic communication service provider's system. Therefore, the employer may have been able to examine its own computers without violating the SCA.

Even though an employer may have adequately informed its employees that they should have no expectation of privacy regarding personal emails sent or received on the company's computer, an employee does not surrender all rights to privacy by using a company's computer to send personal emails. If an employer is concerned about an employee using a company computer to send or receive personal emails, the employer should consult an attorney to discuss whether there are any lawful ways by which the employer can access those personal emails.