Wednesday, November 20, 2013

Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content!

Evolving and new technology will always present new issues and questions for present laws.  In the employment law context, a trend that has been around for quite some time is employers providing employees with smart phones, which allow people to store all kinds of personal information from pictures, to text messages, to emails.  The issue then becomes, if the phone is property of the employer, does the employee have an expectation of privacy if they choose to store personal content in the phone?  A former employee of Verizon in Ohio has sued asserting her right to privacy.

The case, Lazette v. Kulmatycki (N.D. Ohio, June 5, 2013), involves a former Verizon employee, Sandi Lazette, who was issued a Blackberry.  Lazette chose to use the phone to receive and send personal emails from a Gmail account with the employer's permission.  When Lazette went to leave her job with Verizon and turn the phone in, she thought she deleted the Gmail account from the phone as it was known the phone would be given to another employee but she did not delete the account properly and her former supervisor reviewed her emails.  Lazette sued Verizon and her supervisor for violating the Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., and her common law right to privacy, among other things.  The Defendant filed a motion to dismiss which was granted in part and denied in part (the Order is available here).  The SCA claim and state common law claims survived the motion to dismiss.

The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.  While the court largely rejected Defendants’ assertions, it did find in favor of Defendants--at least partially--with regard to the question of whether all of the accessed emails had been in “electronic storage”--a question that would affect liability under the SCA, which narrowly defines "electronic storage."

Though this case may not have huge implication on Wisconsin law, it will certainly be interesting to see how this case plays out as it is an issue certain to become bigger as technology and employer-issued smart phones are used in the workplace.

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