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September 21, 2011

Electronic surveillance


Electronic surveillance
The Electronic Communications Privacy Act

Employers may find themselves being sued and held liable for unlawful harassment as a result of employees using e-mail and other electronic means of communications which others find offensive or discriminatory.

For example:

1. African-American employees sued, charging that their employer, Morgan Stanley and Company [Owens v Morgan Stanley & Co., USDC, SDNY], denied them promotions because of racial discrimination in violation of Title VII and introduced as evidence racially insensitive e-mail messages transmitted via Morgan Stanley's computers.

2. In Schwenn v Anheuser-Busch, Inc., USDC, NDNY, Schwenn introduced as evidence of a hostile work environment claim "sexually explicit e-mail messages she had received."

3. Postings on the employer's electronic bulletin board were part of the basis for suing the Continental Airlines in federal district court [Blakey v. Continental Airlines Inc., NJ Supreme Court].

As a general rule, courts impose a duty to stop such forms of harassment and discrimination on employers. Employers can take steps to prevent such misuse of its electronic data equipment, or at least be able to claim it tried to do so, by instructing its workers that the use of e-mail and electronic bulletin boards under its control:

1. Cannot be used for distributing discriminatory jokes, statements or other unlawful purposes; and

2. Employees who do so will be disciplined.

Does this mean that employer's may monitor its employees' use of its computer equipment to guard against such misuse?

The Electronic Communications Privacy Act of 1986 [18 USC 2071], prohibits the unlawful intentional interception of e-mail among other forms of protected communication. However, there are a few exceptions to this general rule.

Among the exceptions relevant to the monitoring of e-mail by employers is that the employee may give "consent" to such monitoring. This exception may encourage employers to attempt to negotiate the inclusion of a "consent to monitoring e-mail" in a collective bargaining agreement.

In DuPont and Co., 301 NLRB 12, the National Relations Board ruled that the employer has a duty to bargain with the union over the monitoring of employee e-mails.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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