While the case is still in the early stages, Sidell v. Structured Settlement Investments, LP et al, Case No. 3:08-cv-00710-VLB (D.Conn 2008), is shaping up to be a case to watch. Recently covered by The New York Times, the lawsuit involves an interesting twist on workplace monitoring; namely, what are the limits on an employer’s access, using its own computer equipment, to an employee’s e-mail stored in an employee’s personal e-mail account. Ultimately, the case may add to the growing list of decisions regulating electronic communications in the workplace. See, e.g., Quon v. Arch Wireless; Scott v. Beth Israel. The Ninth Circuit decision in Quon was discussed in our prior blog entry, Ninth Circuit Ruling Not a Significant Obstacle to Employers' Accessing Text Messages.

According to the complaint, this is what happened: A company closed a branch and fired the office manager. The company claimed that the termination was for cause and explained the facts supporting its decision to the manager. Before the company had changed the locks, the office manager entered his old office, logged on to his computer, and sent an e-mail to his personal attorney regarding his potential claims against the company. The office manager did not log-off from his Yahoo! account, nor did he turn off his computer. As a result, this e-mail remained accessible through the computer in the office manager’s former office. Over the next few weeks while using the same e-mail account, the office manager sent his personal attorney numerous additional e-mails regarding his termination.

Soon after his termination, the office manager demanded arbitration under his employment contract. During discovery, it became apparent that following the office manager’s termination, the company had been monitoring the manager’s personal Yahoo! email account. The office manager then filed a separate lawsuit against the company, claiming violations of the Federal Wiretap Act, the Stored Communications Act, state statutes and for invasion of privacy. The case is currently pending.

The Federal Wiretap Act claim most likely will fail because claims under that statute can proceed only if the content of e-mail is acquired in the transmission process. The office manager’s other claims have a chance of surviving. As one commentator noted to The New York Times, these facts “would make a great exam question.”

This case raises a host of issues, including:

• whether the former employee consented to the employer’s access to his personal e-mail because he did not log-off of his account or turn off his computer and he knew his former employer would have access to it;
• whether employees have an expectation of privacy when they log-on to web based e-mail through company owned and controlled computers;
• whether a terminated employee enjoys any expectation of privacy when using a former employer’s computer system;
• the extent to which an employer may access information left by a terminated employee;
• at what point attorneys have a duty to disclose attorney-client communications; and
• how an employer’s electronic resources policies affect the expectation of privacy of employees and former employees. 

This case is also a reminder that electronic resources policies need careful consideration, including:

• whether the policies should prohibit employees from using corporate resources to access personal e-mail accounts;
• whether the policies should require employees to consent to their employer accessing their personal e-mail account if accessed using corporate resources; and
• whether the policies should warn employees that their employer will access employees’ e-mail sent to a personal attorney over the corporate computer network.

There is no one right answer. Rather, employers need to consider their corporate culture, educate employees and be prepared to routinely enforce such policies in a uniform, non-discriminatory manner.