Electricity has been a benefit and a curse to the legal profession.\u00a0 Before the invention of the fax machine, lawyers could write letters and not have to worry about the matter for a couple of days while it was being delivered.\u00a0 The first fax I received was 76 pages on thermal paper that didn’t cut off to page sizes and scrolled onto the floor as one page over 50 feet long.\u00a0 I knew at that moment that technology was going to be a mixed bag.\u00a0 Clients now call and leave voice messages telling me that they sent me an email or a fax (or both).\u00a0 I check emails while ice fishing (unless the fish are biting).
\nWhile the access provided by electricity has been a mixed blessing, there is no questions that it has greatly affected my employment law practice.\u00a0 When the internet was first introduced, it became immediately apparent that employees would view things at work that they would not dream of looking at from home (often for fear of reprisal by a spouse).\u00a0 This created the need for personnel policies related to Internet use.\u00a0
\nEmails became a common form of discourse that mixed the concepts of informal slang, often not entirely professional or appropriate statements and what was a more permanent record that could retrieved. Again, this created the need for (revised) policies.\u00a0 Attachments to the emails included material that blurred the distinction between Internet and email.\u00a0 Revised policies were needed (again).\u00a0
\nFacebook became a media in which private and personal lives merged.\u00a0 When a client told me that he was Facebook friends with subordinate employees, I briefly contemplated returning to my former career working in a paper mill.\u00a0 Then I remembered this client’s opportunity for disaster (now corrected) is all wonderful news for longevity in my practice area.
\nThroughout this process, one common theme has emerged.\u00a0 The key question is what privacy rights do employees have within this type of communication and what monitoring roll can\/should an employer take?\u00a0 In Minnesota, there is a law that prohibits employers from refusing to hire a job applicant or disciplining or discharging an employee because the employee engages in the ” enjoyment of lawful consumable products” off premises during non-working hors.\u00a0 A boss should not take action against an employee who posts pictures on Facebook of their weekend project building a tree house out of\u00a0recently emptied beer cases.
\nOne of the trickier areas in this area was whether an employee had enforceable privacy interests in text messages sent by the employee on company phones.\u00a0 The United States Supreme Court recently ruled that a search of an employee’s text messages was reasonable.\u00a0 In the City of Ontario vs. Quon, the city issued phones to officers in the police department.\u00a0 When the officers exceeded their monthly limits for several months, the city sought to determine whether it had set the existing monthly limit on characters too low -resulting in officers having to pay fees for sending work related messages or whether the overages were for personal messages.\u00a0 The city reviewed the content and discovered that many of Quon’s messages were not work related and some were sexually explicit.\u00a0 Further investigation revealed that few of Quon’s on-duty messages related to police business.
\nBecause the case involved a city (as governmental entity, the constitutional rights of employees are somewhat more involved), there were additional privacy rights considered by the court.\u00a0 Nevertheless, the court’s decision provides guidance for employees in both the private and public sector. The Court held that the search was reasonable even if the employee had a reasonable expectation of privacy.\u00a0 This case was particularly interesting because the Supreme Court is (sometimes unfairly) viewed as suspicious of technology as advanced as the ballpoint pen.\u00a0 The court noted\u00a0 their unease with this decision and advised that “the judiciary risks error by elaborating too fully of the Fourth Amendment implications of emerging technology before its role in society has become clear.” The Court advised readers to view the decision narrowly.
\nWith these cautions, the Court held that the search was appropriate where it was conducted: a(for a non-investigatory work related purpose or for the investigation of work related misconduct; b) was justified at its\u00a0 inception; and c) the measures adopted reasonably related to the objectives of the search and were not excessively intrusive in the light of the circumstances giving rise to the search.
\nThe decision highlights that, from an employees perspective, these types of communications should not always be considered private.\u00a0 From an employer’s perspective, it should view the same principles applicable to searching an employees physical office.\u00a0 Employers who wish to review the communications of employees should apply the factors noted in this case before accessing the information. This case highlights the need for personal polices or rules regarding the employer’s right to access electronic communications provided by the employer.<\/p>\n","protected":false},"excerpt":{"rendered":"
Electricity has been a benefit and a curse to the legal profession.\u00a0 Before the invention of the fax machine, lawyers could write letters and not have to worry about the matter for a couple of days while it was being delivered.\u00a0 The first fax I received was 76 pages on thermal paper that didn’t cut off to page sizes and scrolled onto the floor as one page over 50 feet long.\u00a0 I knew at that moment that technology was going to be a mixed bag.\u00a0 Clients now call and leave voice messages telling me that they sent me an email or a fax (or both).\u00a0 I check emails while ice fishing (unless the fish are biting). While the access provided by electricity has been a mixed blessing, there is no questions that it has greatly affected my employment law practice.\u00a0 When the internet was first introduced, it became immediately apparent that employees would view things at work that they would not dream of looking at from home (often for fear of reprisal by a spouse).\u00a0 This created the need for personnel policies related to Internet use.\u00a0 Emails became a common form of discourse that mixed the concepts of informal slang, often not entirely professional or appropriate statements and what was a more permanent…<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[14],"tags":[],"coauthors":[],"yoast_head":"\n