While several cases have held that employees do not have a reasonable expectation of privacy in email or other content sent or received from the employer’s computer system, Courts are increasingly taking into account whether an employer has a policy that specifically warns employees that their electronic communications and internet activity will be monitored.
Stengart v. Loving Care Agency, 2010 N.J. LEXIS 241 (N.J. Mar. 30, 2010)
The New Jersey Supreme Court found that despite the employer's written policy that stated the “company reserves and will exercise the right to review, audit, intercept, access, and disclose all matters on the company's media systems and services at any time, with or without notice” the Plaintiff had a reasonable exception of privacy in emails exchanged with her attorney from her password protected Yahoo account from her work issued laptop.
However, the Court also held, “ Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate polices…. [and] may discipline employees and, when appropriate, terminate them, for violating proper workplace rules.”
Pietrylo v. Hillstone Rest. Group d/b/a Houston’s, No. 06-5754 (D.N.J. June 16, 2009) Takeaway: Employers may not use another person’s password or pretend to be someone else in order to access an employee’s private password protected social media website.
Managers violated Federal and State statutes by intentionally accessing the MySpace page without authorization.
Jury awarded $17,003, including $13,600 in punitive damages.
Defendant held liable for Plaintiffs’ attorneys fees.
Two waiters were fired after their managers took offense at comments posted on a password-protected MySpace group for restaurant staff.
Another employee gave managers her password to access the MySpace page, but claimed that she was coerced into doing so.
Potential Employer Liability for Harassment via Social Media
Employer who knew or should have known of employee’s use of social media to harass other employees could face liability.
Blakey v. Continental Airlines, Inc., 164 N.J. 38 (2000). Company has duty to take effective measures to stop employee harassment of a co-worker when it knows or should know harassment is taking place in the workplace or work-related settings. Court remanded case to determine whether electronic bulletin board was sufficiently tied to workplace to allow liability.