Civil Electronic Privacy Statutes

The Electronic Communications Privacy Act (1986) gives an employer who maintains email and/or voice mail systems the right to access those systems.1 This right does not exist under the Act if the systems are provided by an outside entity. Certain unauthorized disclosures are prohibited by the act. Disclosure can be made only to:

• The addressee or intended recipient
• An agent of the addressee or intended recipient
• Other people, with the consent of the originator, addressee or intended recipient

The Omnibus Control and Safe Streets Act regulates the interception of wire, electronic and oral communications.2 It prohibits the intentional interception of any communication through the use of any electronic, mechanical or other device. However, merely retrieving information after transmission has ceased probably would not be considered an interception of information.3 That is, you might be allowed to listen to or read the transmission after it has been made.

An employee can give consent, either explicitly or implied, to an otherwise impermissible monitoring of a communication. The courts are split on what constitutes an implied consent, and often will look to the way a company sets forth and applies its policies relating to privacy.4 The court can find implied consent if a well-known monitoring and access policy exists and you consistently enforce the policy against use of your communication devices for personal reasons. On the other hand, courts might not find implied consent where an employee has consented to your policy of monitoring business calls but not personal calls.

The Act does not prohibit intercepting communications by telephone or related equipment being used in the ordinary course of business. This exception allows you to monitor your employee’s telephone calls for customer service or training purposes. Monitoring voicemail messages is probably not a prohibited interception, because voicemail systems rely on telephone equipment. However, monitoring email messages probably would not fall under this exception. Be aware that the courts determine the question of whether a particular message was monitored “in the ordinary course of business” on a case-by-case basis. Standards for making this determination vary among the courts.

Criminal Electronic Privacy Statutes

In addition to the federal civil statutes, California places criminal sanctions on people who engage in wiretapping or various related activities. Activities prohibited include:

• Intentional wiretapping
• Willfully attempting to learn the contents or meaning of a communication in transit over a wire
• Attempting to use or publicize information obtained in either of the above ways5
• Eavesdropping on or recording confidential communications6
• Disclosing the contents of a telegraph or telephone message by a person other than the addressee without permission of the addressee7

In general, eavesdropping is prohibited under these statutes only if done while the message is in transit. Therefore, listening to voicemail messages once recorded or reading sent email messages should limit exposure to criminal penalties.

Listening to or recording confidential communications is prohibited if either party to the conversation expects it to be private. Outgoing voicemail messages should not indicate that the caller can “leave a private message,” and might even go so far as to state that incoming messages may be monitored by the company. You should warn all email users in writing that you do not guarantee email communications to be private and that you can access them. Your best defense is to clearly inform employees and all others using your electronic communication systems that they should not expect communications to be private.

Use of Employer’s Email System for Otherwise Protected Conversations

Under the National Labor Relations Act (NLRA), employees have the right to engage in protected concerted activity, which includes discussing their working conditions, pay or other work-related issues. But to what extent can employees engage in these conversations using company provided communication and IT systems, such as email or messaging platforms? Can an employer restrict the use of its systems to only business purposes?

The National Labor Relations Board (NLRB) ruled in the 2019 decision Caesars Entertainment that restricting the use of company email systems for non-business purposes didn’t violate the NLRA.8 The Board noted that oral solicitation and distribution of literature at work were effective methods of communication available in the typical workplace. Furthermore, employees have access to smartphones, personal email accounts and social media, all of which provide additional avenues of communication for section 7-related purposes. As such, a restriction on company email for non-work purposes is not an unreasonable restriction on section 7 rights.

Under Caesars Entertainment, employers generally have the right to control the use of their equipment, including IT resources, so long as they don’t discriminate against union or other protected communications. Employers must be mindful of how they craft and enforce their email/IT resources policies. For example, if employers allow employees to use company email to discuss non-work topics (e.g., weekend plans, favorite shows, etc.), then they may not be able to prohibit discussion of union-related matters.

1.18 U.S.C. 2701