Employers’ ability to monitor e-mails sent by employees at work is a hot topic being addressed by courts nationwide as privacy laws work to catch up with technology. In United States v. Szymuszkiewicz, the Seventh Circuit Court of Appeals provides a different perspective on this issue, finding that an IRS agent violated the Wiretap Act by secretly setting up his boss’s e-mail account to forward all received e-mail messages to his own account.
David Szymuszkiewicz worked as an IRS agent whose job required him to visit delinquent taxpayers’ homes. After losing his driver’s license for driving while drunk, he became concerned that he might lose his job and decided to secretly monitor all e-mails sent to his supervisor. The Wiretap Act makes it unlawful to “intercept” electronic communications. Szymuszkiewicz argued that he did not violate the Act because he did not intercept any communications during transmission as one might intercept a telephone call by tapping a phone line. The court rejected this argument, holding that an interception need not be contemporaneous and that Szymuskiewicz’s use of the auto-forward feature in Outlook met the statutory definition. The court also stated that its analysis applies equally to digitally transmitted telephone calls, which are sent in a manner similar to e-mail transmissions.
Although this decision offers a reason for caution, it does not mean that employers must abandon their existing communications policies. Courts have ruled that employers are not subject to liability under the Wiretap Act for monitoring employees suspected of violating company policy if the monitoring serves to protect the company’s “rights and property.” Employers also have a legitimate argument under the Act that they are not liable for monitoring employee communications if the monitoring occurs in connection with “an activity which is a necessary incident to the rendition of [the employer’s] service.”
Nevertheless, it’s wise to act carefully when monitoring employees’ electronic communications, because this area of the law is developing rapidly and the rules vary from jurisdiction to jurisdiction. Be sure to have up-to-date policies notifying employees that their communications may be stored, monitored and reviewed. You might also strongly consider requiring all employees to acknowledge such policies as a condition of employment.
Article courtesy of Worklaw® Network firm Franczek Radelet.
