October 25, 2020

Volume X, Number 299

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State Law Claims for Intercepted Electronic Communications are Not Preempted by the Federal Electronics Communications Privacy Act because the Federal Statute Does Not Provide for Exclusive Remedies

In Ducharme v. Madewell Concrete, LLC, No. 6:20-1620-HMH, 2020 U.S. Dist. LEXIS 127615 (D.S.C. July 17, 2020), Defendants Madewell Concrete, LLC and Kevin Johnston’s (“Johnston”) (collectively, “Defendants”) motion to dismiss Plaintiff Robert Ducharme’s (“Plaintiff”) South Carolina Homeland Security Act (“SCHSA”) claim pursuant to Federal Rule of Civil Procedure 12(b)(6) was denied.

Plaintiff alleges that Defendants deliberately misclassified him as a salaried employee, which exempted him from the overtime requirements of the Fair Labor Standards Act (“FLSA”). Accordingly, Plaintiff contends that he was not compensated for his overtime work. Plaintiff also alleges that Defendant Johnston illegally and without authorization accessed Plaintiff’s personal email account.

Plaintiff’s lawsuit alleges three claims: violations of (1) the Stored Communications Act, (2) the SCHSA, and (3) the FLSA.

Defendants argue that Plaintiff’s SCHSA claim is preempted by the Electronic Communications Privacy Act (“ECPA”) because in 18 U.S.C. § 2518(10)(c), “Congress expressed clear intent that any alleged interception of any ‘electronic communications’ falls under the exclusive remedy of the [ECPA].” Accordingly, the Court describes the dispute as whether “the interception of electronic communications provisions of the ECPA preempt a claim based on the interception of electronic communications provisions of the SCHSA.”

In holding that § 2518(10)(c) does not expressly preempt state law claims, the Court noted that  “Congress could have easily and explicitly stated that the remedies in the ECPA are the exclusive remedies for all interceptions of electronic communications or that the ECPA preempts state law claims, but it did not do so.” The Court went on to find that the legislative history of § 2518(10)(c) indicates that “the interceptions of electronic communications were not subject to the exclusionary rule absent a Fourth Amendment violation.” Thus, state law remedies are permissible for certain intercepts of electronic communications (such as personal emails) and “the ECPA does not preempt Plaintiff’s claim under the SCHSA. This case is a good reminder that employers should be mindful to ensure compliance with applicable state privacy laws, in addition to the well-known federal ones.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 209
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About this Author

Jacob M. Davis Litigation Attorney Squire Patton Boggs Denver, CO
Associate

Jacob Davis is an associate who focuses his practice on litigation matters.

While earning his law degree, Jacob supported the US Attorney’s Office for the Southern District of California as a summer extern and the US District Court for the Central District of California as a judicial extern to the Honorable S. James Otero. Jacob was also a member of Loyola’s International and Comparative Law Review staff, a member of Loyola’s Student Advisory Board and a member of Loyola’s Student Animal Legal Defense Fund. He also accepted two offers to work as a summer associate in our...

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