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Can Employers Monitor Employee Electronic Communication?

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Article

Can Employers Monitor Employee Electronic Communication?

Clyde Snow Voice by Christopher B. Snow

July 9, 2014

 Clyde Snow & Sessions, a full-service law firm with offices in Utah, California and Oregon, is dedicated to serving the legal needs of regional, national and international clients. 

In this fast paced economy (well, it’s picking up anyway!), clients need instant (right) answers to assist in navigating complex workplace scenarios that involve monitoring, reviewing, and accessing employees’ electronic communications.  In other words, employers sometimes demand the legal right to snoop.  Let’s consider a few increasingly common scenarios that may involve a client’s legitimate business interests to snoop on employee electronic communications. 

  1. Trade Secret Theft.  Your client calls your firm in a panic and informs you that they just learned a key employee has emailed 100s of proprietary documents to his personal Gmail account and the company believes the employee is intending to resign to work for a direct competitor.  Your client asks whether they can demand the employee turnover his Gmail account password so the IT department can take immediate measures to ensure the information is not electronically transmitted to third party competitors or elsewhere.   What do you tell them? 
  2. Facebook Defamation.  As a legal practitioner, your clients (or your own firm) will inevitably encounter the situation where an employee has posted negative, inflammatory and slanderous statements on facebook about the Company’s upper level management.  Does the law permit employers to demand employee’s social media passwords to access and review the potentially defamatory and untrue statements? 
  3. Harassment.  Sexual harassment continues to be a common workplace issue, which increasingly involves the use of illicit text messages, photo shares, and emails on both company and personal electronic communication devices. Your clients might call you for guidance on conducting an internal sexual harassment investigation that purportedly involves salacious text messages sent from the harasser’s phone and emails sent from the harasser’s email account.  Is your client permitted to require the harasser or the victim to turn over their devices or the passwords to the devices to cooperate in the investigation?  What if they refuse?  Can employer’s demand access to the text messages, or inappropriate emails?

Utah’s Internet Employment Privacy Act  (“IEPA”)

To advise clients in handling the above scenarios, practitioners must have an understanding of the scope and limits of the IEPA.  Approximately one year ago, Governor Herbert signed into law the Internet Employment Privacy Act (“IEPA” or the “Act”).  Utah Code Ann. §§ 34-48-101 to 301 (LexisNexis 2013).  Utah is one of 12 states that passed legislation governing employer’s rights to request personal Internet account passwords from job applicants or employees, and employer’s rights to review applicant’s and employee’s electronic communications.  Utah’s Congress enacted this legislation in the wake of several high profile stories relating to employers demanding job applicant’s social media passwords in a pre-hire background check scenario. 

Applies to All Utah Employers

The IEPA applies to all private and public employers that have “one or more workers or operators employed in the same business, or in or about the same establishment, under any contract of hire, express or implied, oral or written.”  Utah Code Ann. § 34-48-102(2).  While not explicit, the enacted language appears broad enough to apply to employees and independent contractors alike. 

General Employer Snooping Prohibitions

Under the IEPA, employers may not: “request an employee or an applicant for employment to disclose a username and password, or a password that allows access to the employee's or applicant's personal Internet account.”   Utah Code Ann. § 34-48-201(1).  The IEPA expressly prohibits employers from taking adverse action, i.e., failing to hire, terminating, discriminating, disciplining or in any way penalizing, against applicants or employees for refusing to disclose personal Internet account passwords or access.  Utah Code Ann. § 34-48-201(2).  The Act defines “personal Internet account” as an “online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer.”   Utah Code Ann. § 34-48-102(4)(a).  The Act further clarifies that a personal Internet account “does not include an account created, maintained, used, or accessed by an employee or applicant for business related communications or for a business purpose of the employer.”   Utah Code Ann. § 34-48-102(4)(b).  The plain language of the IEPA (and that is all we have at this point since there is not a single judicial decision interpreting or discussing the intent of the statute) only prohibits employers from accessing applicant’s or employee’s personal Internet accounts, i.e., email, voicemail, text messages, and social media accounts, that are used exclusively for personal communications and that do not concern the business of the company. 

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