Electronic communication has recently been in the media spotlight, with high profile cases such as the federal probes into Hillary Clinton’s use of personal email during her time as secretary of state. This is an area of law in which there is no uniform protocol. Online privacy is currently governed by a patchwork of overlapping federal and state laws.
Sachin Pandya, a professor at the UConn School of Law and an expert on American employment law, discusses email rights and digital communication in the workplace.
What are some of the most common online privacy concerns?
When you worry about privacy in connection with sending or receiving an email, tweet, post, or other electronic communication, mostly you’re worried that somebody else will or has read that communication without permission. For online workplace privacy, that somebody else is your employer. Your employer already has the right to control to some extent the work you do and when you do it. We actually want employers to monitor their workers to some extent – to measure job performance and to make sure their workers don’t act in a way that puts customers, co-employees, or even the employer’s reputation at risk. But we don’t want employers to use their power to control in general what you say and do and with whom. Since most of us work for someone else, the risk is that we lose, among other things, a robust civil society. That’s in part why laws on workplace privacy matter, both online and in the physical world.
How do we calibrate the law to best protect both worker privacy and employer monitoring for legitimate ends?
There is no single source of law for online workplace privacy. Actually, a lot of the relevant law arose well before electronic communication existed or became ubiquitous. Many state laws prohibit anyone – including a private employer – from intentionally intruding upon a person’s “seclusion” in a way that’s highly offensive to a reasonable person. That covers not only the employer who videotapes the company bathroom, but also the one who covertly reads the text messages on your own personal smartphone. As you might guess, what counts as “highly offensive” varies a lot by the facts of a particular case. It also changes over time with what judges take to be society’s views of what should count as private. There are, to be sure, various federal and state statutes that cover electronic communications generally, but these laws were mostly aimed at computer hackers. Still, judges have applied these laws in cases where an employer or employee intercepted or accessed electronic communications without the other’s permission. Only rather recently have legislatures passed laws with workplace online privacy directly in mind.
Are personal email accounts on third-party servers protected from employer searches, even if accessed on a workplace computer?
Mostly yes. If you use your employer’s computer to access your private, password-protected email on the server of a third-party service provider, the Stored Communications Act bans your employer from deliberately accessing that email without your permission. By contrast, you should expect a lot less privacy for communications via your employer’s email system, or at least as much or as little privacy as the company’s email policy provides.
But what if your employer asks you for permission to access your personal email or Facebook accounts? If you expressly authorize access for your employer, then the Stored Communications Act’s ban doesn’t apply. Some state legislatures have taken the lead and banned employers from asking or requiring an employee to give them access to their personal email or social media accounts. By mid-April this year, 22 state legislatures had introduced or considered this kind of legislation.
Can employers require that employees grant them access to their social media accounts? Can employees be legally fired because of what they post on social media?
It depends. Employer motives in that situation can vary. Maybe what you posted really harmed the company’s reputation. Or maybe it contradicts what you said in an internal investigation of alleged employee misconduct. Or maybe they just disagree with the viewpoint you express. The legal protections you have as an employee vary with the source of law. The First Amendment’s Free Speech Clause restricts what government employers can do when an employee engages in protected “speech” – including online posts and emails. In contrast, the National Labor Relations Act (NLRA) – which applies to private employers – protects you if what you did counts as a “concerted activity” for the purpose of “mutual aid or protection.” Think for example about an email that complained about company policy and suggested what workers at the company could do about it. What many people don’t realize is that the NLRA protects non-unionized employees as well as those in a labor union.
