Electronic surveillance
The Electronic Communications Privacy Act
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.