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Jury Verdict Highlights Risks Involved in Monitoring Employee E-Mail and Reminder to Start Using New Form I-9

The Fourth Circuit Court of Appeals recently decided a case demonstrating the substantial damages available under the federal Stored Communications Act (“SCA”) for improperly accessing an employee’s private, personal e-mail account.  The underlying lawsuit was brought by a former employee of the defendant company and was based on allegations that the employer improperly gained access to and read e-mail from the employee’s private e-mail account without her permission.  

The employee initiated an employment discrimination lawsuit against the employer, along with a claim for unemployment benefits and unpaid commissions.  Meanwhile, the employer instituted an action against the employee for several business torts.  During a deposition in the employer’s lawsuit, the employer used several e-mails that were obtained from the employee’s personal e-mail account.  Significantly, the employer company provided the employee a company e-mail account, but the employee also used her personal e-mail account for business purposes.  

The employee sued the employer company and its president under the SCA.  The SCA provides, in substance, that it is unlawful for anyone to intentionally and without authorization access a facility through which an electronic communication service is provided.  The SCA provides statutory penalties for each violation of the Act.  The amount of the judgment that was initially entered against the employer company and its president individually is noteworthy.  The jury awarded the employee $150,000 in statutory damages and $75,000 in punitive damages against the president of the company, and an additional $25,000 in statutory damages and $25,000 in punitive damages against the company.  The court also awarded the employee $135,723.56 in attorneys' fees and costs.  The Fourth Circuit Court of Appeals eventually struck the statutory damages award because the employee did not prove she suffered actual damages, but allowed the punitive damages and attorney fee award to stand.   

Although this case primarily dealt with the proper measure of damages under the SCA, it does serve as a reminder that there may be a statutory cause of action for damages when employers improperly gain access to and read e-mail from an employee’s personal e-mail account without his or her permission.  The case also should cause employers to examine their electronic information policies.   

The SCA contains exceptions that permit an employer to access and monitor employee e-mail on e-mail systems and other “electronic communication systems” that are owned or provided by the company, or whenever employees consent to such monitoring.  Many employers have policies that put employees on notice that any e-mail systems, voicemail systems, and other electronic data storage systems owned or provided by the company are the property of the company and that employees have no expectation of privacy in the e-mail and other data stored or transmitted on those systems.  Properly drafted, these policies permit monitoring of employee e-mail on company-owned or company-provided systems and other forms of company-facilitated communication, without exposing an employer to liability for privacy-based civil claims.

To obtain employee consent, the policy should be included in the employee handbook given to all employees, and employees should be required to sign an acknowledgement and consent form indicating that the employee consents to the terms of the policy and to the company's monitoring of e-mail and internet use and any other electronic information systems covered by the policy.   

Having a comprehensive electronic information policy in place can help an employer that monitors employee e-mail avoid difficulty if a claim is brought by an employee based on invasion of privacy.     

IMPORTANT REMINDER TO ALL EMPLOYERS:  All U.S. employers are required to complete and retain a Form I-9 for each individual hired for employment in the United States.  The United States Citizenship and Immigration Services (USCIS) recently published a rule that amends Form I-9.  The revised Form I-9 reflects changes to the list of documents that are acceptable for establishing identity and employment authorization.  Additionally, the revised form reflects the new rule’s requirement that all documents provided during the verification process must be unexpired.  The effective date for the new Form I-9 was April 3, 2009.  The new form must be used from that date forward.  Employers may obtain copies of the new form from the USCIS website.

© 2020 Poyner Spruill LLP. All rights reserved.National Law Review, Volume , Number 226

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About this Author

David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...

919-783-2854
Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm
Partner

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all applicable statutes and regulations, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Worker Adjustment and Retraining Notification Act.

919-783-2853