Employee monitoring and workplace privacy continues to be a hot employment topic in the United States and in other countries as well. On January 12, 2016, the European Court of Human Rights (“ECHR”) ruled that a company in Romania (the “Company”) did not breach the privacy rights of an employee (the “Employee”) when it monitored the Employee’s Yahoo Messenger account. In this case, the Company terminated the Employee when it discovered the Employee exchanged numerous messages with his brother and fiancée during work hours from a work computer. The Employee set up the Yahoo account at the Company’s request so the Employee could message Company clients. But, the Company had communicated to the Employee that he was not permitted to use the Yahoo account for personal purposes. The Employee claimed that the Company breached his right to privacy, but the ECHR ruled that it was “not unreasonable for an employer to want to verify that their employees are completing their professional tasks during work hours.” See Case of Barbulescu v. Romania for more details.

This same issue of employee monitoring and workplace privacy was addressed a little over five years ago by the United States Supreme Court in City of Ontario v. Quon. In Quon, the Court held that the City of Ontario’s search of Quon’s transcript of messages, from an employer-provided pager, was reasonable and justified because there were legitimate grounds for suspecting that it was necessary for a noninvestigatory work-related purpose. See City of Ontario v. Quon for more details on this case.

With the continued intermingling of business and personal communications, employee monitoring and workplace privacy continues to be an important issue that employers need to address in their policies and with their employees. Barbulescu reminds us that it is important for employers to implement and disseminate written policies concerning electronic communications and the utilization of such communications to be well-positioned to defend against invasion of privacy claims filed by employees. Such policies should:

• Be broad enough to encompass emerging technologies;

• Communicate clearly to employees that they have no expectation of privacy, confidentiality or ownership in data stored, sent or received on company systems or generated using company-issued devices; and

• Communicate clearly to employees that communications and systems usage may be monitored and audited.

If you would like more information on employee monitoring and workplace privacy or would like to discuss updating your policies to ensure they meet the current workplace standards for communication and technology purposes, contact either Tanya Nardone or Christopher Tackett, our employment/discrimination attorneys.