Outten & Golden attorneys know the ins and outs of maintaining one’s privacy in the workplace, including how to protect private electronic data. Our lawyers can negotiate employment agreements and challenge employer policies that contain language seeking to limit employees' access to or ability to retain electronic communications or devices, or to reduce employees' expectations of privacy in electronic communications. In fact, such policies or agreements are sometimes unenforceable.
Employees do not lose their privacy once they walk in their employer's door. Even in the private sector, employees can have privacy-related claims against their employers. The Stored Communications Act (SCA) often protects employees' private electronic communications, such as those made via personal email accounts and social media sites (e.g., Facebook, MySpace or LinkedIn), against unauthorized access by employers. Similarly, where an employer uses spyware technology to track employees’ computer use without their authorization, employers may be in violation of the Wiretap Act. In both circumstances, civil remedies and damages are available to employees.
At the same time, however, employees may face claims by their employers for conduct pertaining to workplace electronic devices. For example, in some circumstances where employees delete emails or files without their employer’s authorization, they risk claims under the Computer Fraud and Abuse Act (CFAA). Employees may also face claims under the CFAA if they access parts of their company’s computer systems without authorization.
An employer might also bring a claim under the CFAA as unlawful retaliation for engaging in protected conduct. In certain circumstances, where an employer uses the judicial system as a tool of unlawful retaliation, the targeted employee may be able to recover damages against the employer, including attorneys’ fees and costs.