Phones, computers, e-mail addresses and other technology provided to employees by their employers may be monitored by those employers. In City of Ontario v. Quon, the United States Supreme Court held that an employee possessed no expectation of privacy as to his employer-provided pager. According to Justice Stevens, the employee "should have understood that all of his work-related actions -- including all of his communications on his official pager -- were likely to be subject to public and legal scrutiny." By including language to that fact in company policies and employee handbooks, employers can remind employees that they lack technological privacy while in the workplace.
Employers should contact an employment attorney to add privacy language to employee policies and/or handbooks. When discussing possible language with an attorney, the employer needs to decide what it will do, not what it wants to do. Unenforced policies are rarely worth the paper they are printed on, thus err on the practical side. Sample E-Mail Policy Language: "Electronic mail message (e-mail) addresses shall be provided to current staff members. Those staff members should only use their e-mail addresses for work purposes or other professional activities."
Both employees and employers must understand that the Internet is essentially a public place. As one federal court noted, "a person who places information on the information superhighway clearly subjects said information to being accessed by every conceivable interested party." But invite only and encrypted websites do afford their users privacy protection. If an employer never receives an invite or the password to an employee's website, accessing that website could expose the employer to invasion of privacy claims.
Employers may certainly ban their employees from accessing Facebook or other social media websites while those employees should be working. Yet the same employers should be careful not to interfere with an employee's right to participate in concerted activities. Federal labor laws, which also apply to non-union employers, allow employees to discuss the conditions of their employment, even if those discussions take place online. In 2011, the National Labor Relations Board (NLRB) filed a complaint against American Medical Response of Connecticut (AMR). The company disciplined an employee after she criticized a supervisor on Facebook. The NLRB felt that AMR's action illegally prohibited the employee from discussing the conditions of her employment. The agency also argued that employers cannot enforce overly-broad policies regarding blogging, Internet posting and other communications among employees.
The contents of this guide are for informational purposes and should not be considered legal advice. This guide does not establish an attorney-client relationship. If an employer has specific questions regarding the topics discussed herein, that employer should find and contact an attorney with experience in employment matters.