Workplace Privacy, Data Management & Security Report : Privacy Lawyers & Attorneys : Jackson Lewis Law Firm : Data Security, HIPAA & Confidentiality Issues

Contributed by Lillian Chaves Moon

Based partially upon an interpretation of Florida law, in Global Policy Partners, LLC, et al. v. Yessin, 2009 U.S. Dist. LEXIS 112472 (Nov. 24, 2009), a Virginia district court has ruled that an LLC’s partner does not always have the authority to access a partner’s e-mails simply by virtue of his status in the company.

Katherine and Brent Yessin, husband and wife and business partners, were feuding as part of a messy divorce and business dissolution. Mrs. Yessin, on behalf of herself and the Florida business, brought suit against Mr. Yessin for his alleged illegal access of her personal e-mails, including those containing attorney-client communications in her divorce case, stored on the company’s server in violation of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. §1030(a), and other federal and state statutes. In a motion to dismiss his wife’s complaint, Mr. Yessin argued that under Florida law, as a manager/partner in his business, he had the authority to access all e-mails stored on the business’s computer server regardless of his reason for doing so. The court disagreed.

The court found that even assuming Florida law authorized managers to access e-mail information stored on a company’s computer system, authorization is limited to carrying out the company’s business. Likewise, under the CFAA, authorization to access a computer system may not simply be based on a person’s status within the organization, but whether the person is accessing information in accordance with the “expected norms or intended use” of the computer network. Because the scope of Mr. Yessin’s authority to access his wife’s e-mails depended upon a detailed factual inquiry into his purposes for doing so, Mr. Yessin’s motion to dismiss the CFAA counts of the complaint was denied and Mrs. Yessin was allowed to proceed in her action.

Caution for employers: This decision has implications for employers in how and why managers may access employee e-mails. While an employer generally has the right to review stored e-mails on the employer’s system, regardless of whether the e-mails are an employee’s personal or business communications, the employer or employer’s agent must have a legitimate business purpose for such review, not a nefarious reason. Note, however, that, some courts have limited an employer’s ability to review an employee’s e-mails in other situations, such as when the e-mail is subject to the attorney-client privilege. Employers’ policies and procedures for accessing employee e-mails should be periodically reviewed and revised, where necessary, to ensure that the individuals who access lawfully stored e-mails not only have the appropriate status within the company, but also are doing so for legitimate business purposes.

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Contributed by Kathryn J. Russo.

A recent case emphasizes that employers must ensure they do not make improper medical inquiries related to pre-employment drug test results at the pre-offer stage. John Harrison v. Benchmark Electronics, Inc., No. 08-16656, 2010 App. LEXIS 632 (11th Cir. Jan. 11, 2010). Some valuable lessons for employers are discussed below.

The Eleventh Circuit Court of Appeals permitted an applicant who was not hired after testing positive for drugs used to control his epilepsy to proceed with his lawsuit asserting claims under the Americans with Disabilities Act because there were factual issues whether the employer made an improper medical inquiry and denied employment on that basis.

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The U.S. Supreme Court’s recent grant of certiorari in City of Ontario, Ontario Police Department, and Lloyd Scharf v. Jeff Quon, et al. highlights the effects new technologies continue to have on workplace privacy issues. One issue the Court will consider is whether a California police department violated the privacy of one of its officers when it read the personal text messages on his department issued pager. The U.S. Court of Appeals for the Ninth Court sided with the police officer when it ruled that users of text messaging services “have a reasonable expectation of privacy” regarding messages stored on the service provider’s network.

The underlying suit was filed by police Sgt. Jeff Quon, his wife, his girlfriend, and another police sergeant after one of Quon’s superiors audited his messages and found that many of them were sexually explicit and personal in nature.   Among the defendants were the City of Ontario, the Ontario Police Department, and Arch Wireless Operating. Co. Inc. Plaintiffs sought damages for alleged violation of their privacy rights.

While this case involves a public sector entity, its outcome is likely to affect electronic communications policies and practices across the country, whether by public or privacy employers.  

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As the holidays approach, more of us will be utilizing work time, and likely work resources, to handle our holiday shopping. Some of us may even post our shopping successes or gift ideas on Facebook or email coupons to friends. Doing so not only results in a loss of employee productivity, but also creates significant risk that personal data will be breached, or employers’ software or hardware compromised. 

A recent survey conducted on behalf of the Information Systems Audit and Control Association (“ISACA”) found that over half of employees surveyed planned to shop online from a work computer this holiday season, spending nearly two full working days (14.4 hours) doing so. With convenience and boredom listed as the biggest motivators, one in 10 planned to spend at least 30 hours shopping online at work. 

The survey also found that those who shop online are more likely to engage in other high-risk behaviors, such as banking online, clicking on links from social networking sites like Facebook, and clicking e-mail links redirecting them to shopping sites. Employees engage in these high-risk behaviors with nearly universal disregard for the safety of the employer’s IT infrastructure. This is highlighted  by the fact that one in 10 Americans who use a mobile work device, such as a Blackberry or iPhone, plan to use it for holiday shopping, notwithstanding the lack of security measures on those devices.

Robert Stroud, international VP of ISACA and VP of IT service management and governance for the service management business unit at CA Inc., in connection with the survey above was quoted as saying,

[I]t’s unrealistic to think that companies can completely stop the use of work computers for online shopping…[W]hat companies can and should do is educate employees about the risks…and remind them of their company’s security policy. This is especially important this year, when the convenience of shopping online may be very appealing to employees whose workloads have doubled or tripled because of downsizing.

The Wall Street Journal recently published an article highlighting employers’ efforts to monitor employees’ usage of company time and resources for personal e-mail exchanges, and suggesting a trend that courts seem to be more protective of employee privacy rights than in years past. The WSJ article raised a number of concerns for employers, including that of our own Jane McFetridge, a Jackson Lewis partner in our Chicago office - 

Employers are right to expect their employees when they are paid for their time at work are actually working.

What ever a company's policies are concerning managing or monitoring employee communications, now is as good a time as any to revisit those policies and remind employees of their existence. With the use of technology increasing and the position of the courts appearing to shift toward employees, it is becoming more difficult for employers to manage the employee use of their electronic systems. Having and communicating a clear and comprehensive electronic communications policy is critical.

Steps an employer can take include having acceptable-use policies, reviewing those policies with employees to educate them about the risks, and familiarizing themselves with state laws governing the monitoring of employee computer usage.  

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A New Jersey restaurant has been hit with a jury verdict in favor of two waiters who were fired after the restaurant’s managers accessed a private social networking site where the waiters were criticizing management.

As the social networking (e.g., MySpace and Facebook) “craze” continues to expand, employers must be more mindful of privacy concerns relating to content made available in these media by applicants and employees. Hiring and other job decisions often seem based on information obtained from employees’ or applicants’ social interactions on the Internet, at least to some degree. Generally, employment decisions are more supportable where there is a social networking policy that has been communicated to employees. 

In Brian Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s, a federal court in New Jersey rejected the employer’s attempt to throw out the jury verdict that managers at a Houston's restaurant intentionally and without authorization accessed a private, invitation-only chat group on MySpace in violation of the federal Stored Communications Act (SCA). The SCA prohibits unauthorized access of stored communications such as e-mail and Internet accounts. The Court also upheld the jury’s award of compensatory and punitive damages against Hillstone. 

This case reminds employers to consider carefully any decision to monitor employees’ use of social networking sites.  Mistakes may be costly.

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