Does an Employer Have the Right to Access an Employee’s Personal E-mail Account to Review Work-Related Emails?

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.

COVENANTS NOT TO COMPETE – DIFFICULT TO ENFORCE IN VIRGINIA

In Virginia, it is very difficult to enforce a covenant not to compete against an ex-employee. The Virginia Courts will only enforce a covenant not to compete if: (a) it is narrowly drawn to protect the employer's legitimate business interest, (b) it is not unduly burdensome on the employee's ability to earn a living, and (c) it is not against public policy. In each case, the Court will evaluate the covenant not to compete on its own merits, balancing the terms of the covenant with the circumstances of the businesses and employees involved. 
In a recent case before the Fairfax County Circuit Court, Daston Corp. v. MiCore Solutions, Inc., et al., the Court declined to enforce a covenant not to compete which, on its face, appeared to be reasonable. 
In that case, two employees (with identical employment agreements) of Daston Corp., a business that develops, markets, sells and manages applications for Google pursuant to a nationwide license, left their employment and accepted employment with MiCore Solutions, Inc., a business which provides a range of consulting and information technology services based on Google applications. 
The covenant not to compete in each employee’s employment agreement with Daston read as follows:

At-Will Employment

Here at Gross & Romanick, our business law division is at the heart of our practice and we're dedicated to keeping our clients well-informed and educated about employment law here in VA. Below, you'll find a general discussion of at-will employment in Virginia, but if you're not familiar with the statutes mentioned, its best to seek legal counsel.

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THE AT-WILL DOCTRINE: In the Commonwealth of Virginia when employees are hired, unless there is a specific contract, they are considered to be at-will employees. This means that the employee may be terminated at any time without notice or reason.

LETTERS OF ENGAGEMENT: Letters of engagement do not form a contract if all they do is state the basic terms and conditions of employment, even if they include items such as benefits, compensation, bonuses, and starting date. To be sure that an engagement letter is not misunderstood by the employee as forming a contract it is important to include a line that states that the employment is for no specific period of time and that the employer is free to terminate the employee at any time.

LAWS TO KNOW: Laws to know are the National Labor Relations Act; the Fair Labor Standards Act (FLSA); Title VII of the Civil Rights Act as amended in 1991; any state or local anti-discrimination laws; the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Family and Medical Leave Act (FMLA); the Older Workers Benefit Protection Act; the Worker Adjustment and Retraining Notification Act; the Employee Retirement and Income Security Act; the Consolidated Omnibus Budget Reconciliation Act of 1985 and many others. Sound overwhelming? It can be. If you ever have any questions regarding your rights under the above laws you should consult your attorney.

EVALUATIONS: It is important to adopt a uniform system of evaluation of your employees for hiring and advancement. These evaluations may be closely scrutinized at a later date if your decisions are challenged by your employees in a discrimination suit.

OVERTIME AND THE FLSA: One of the most overlooked and misinterpreted laws is the FLSA's overtime requirements. When a non-exempt employee works over forty hours in one week that employee is to be paid time and one-half of their regular hourly wage. It is often mistakenly thought that this requirement can be satisfied by awarding the employee compensatory time off. Awarding compensatory time off can only be a substitute in very limited circumstances.

ACTION ADVICE: Most Employers prefer the at-will status and should take care not to change it by letter, contract or handbook. If you are not familiar with the statutes mentioned above, contact an attorney and have them explained to you.