In Virginia, it is settled that an employer can legally monitor and review e-mails of an employee communicated through the employer’s e-mail server or e-mail accounts. It is also settled that an employer can legally monitor and review any personal communications that are stored on company-owned equipment, such as computers and cellphones. In both scenarios, the courts have ruled that employees have no reasonable expectation of privacy with respect to such communications. It is less settled whether an employer can legally review work-related e-mails sent or received by an employee through a personal e-mail account.
A recent case out of the U.S. District Court for the Western District of Virginia tackled this very issue. In the case of Hoofnagle v. Smyth-Wythe Airport Commission, et al., the plaintiff alleged that his employer violated his rights under the Fourth Amendment to the U.S. Constitution and the Stored Communications Act (18 U.S.C. § 2701, et al.) when, after his employment was terminated, the employer accessed his e-mail account to review work-related e-mails. The plaintiff had been employed as the manager of a small regional airport. Since his employer did not maintain any e-mail accounts for its business, the plaintiff created a Yahoo! e-mail account that he used for both business and personal purposes. He was terminated after sending the following e-mail to Senator Timothy Kaine:
Dear, Mr. Kain [sic]. I own over 9 AR platform rifles and 30 some various other rifles and shotguns, a dozen handguns, I suggest you stick up for rights of all gun owners in Va. In my opinion you and your kind (Liberals) ARE a CANCER to this state and COUNTRY, therefore I have gone to the voting polls every Nov. to try and eradicate you and your kind from public office, and will continue to do so. We do not have a gun problem, We have an IDIOT PROBLEM, go deal with that, and not the competent gun owner. Here is the Va. NRA tollfree # 1-800-672-3888. Now you can join the NRA. So you can be apart [sic] of something with some substance and character…Charles H. Hoofnagle. Airport Operations Manager Mt. Empire Airport in south west Va. 276-685-1122
In response to the lawsuit, the employer filed a motion for summary judgment, which was granted as to the Fourth Amendment claim (since the search was deemed reasonable), but denied as to the Stored Communications Act (SCA) claim. The Court opined that e-mails stored on the server of an internet service provider (ISP) like Yahoo! are subject to the SCA, and that if the employer accessed the e-mails by directly logging into the ISP website without the authorization of the employee, then such action would constitute a violation of the SCA (regardless of whether the employee used the employer’s computer to send the communications). By denying the employer’s motion for summary judgment, the Court allowed the plaintiff to pursue the SCA claim through trial, with the trial issue clearly being: did the employee give the account password to his employer, thereby authorizing access? The court did conclude that if the e-mail communications had been stored on a work computer, as opposed to on the ISP server, then the e-mails would not have been protected by the SCA.
This case illustrates that it is important for employers to adopt a technology policy that expressly communicates to each employee, at a minimum, that: (a) the employer is authorized to monitor all work-related emails; (b) the employee has no expectation of privacy in work-related e-mails; (c) the employee has no expectation of privacy in materials stored on employer-owned equipment; (d) the employee shall not access personal e-mail accounts from employer-owned equipment; and (e) the employee shall not send work-related e-mails from personal e-mail accounts. This case also illustrates that it is important for employers to issue business e-mail accounts to all employees, and to require employees to provide account passwords.
The attorneys at Gross & Romanick, P.C. have substantial experience drafting employee handbooks and related policies designed to protect business owners.
