By John V. Berry, Esq., www.berrylegal.com
An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.
Thoughts on Employee Use of Employer Computers
In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their own personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace which means that employers can attempt access in reviewing their own computers and networks.
Regarding this issue, one of the biggest concerns that we have run across in representing employees in wrongful termination cases in Virginia involves an employee’s use or alleged misuse of an employer’s email, computers, network or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is to conduct an examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Crime Act, VA. Code § 18.2-152.3 or misappropriation or theft of trade secrets.
The best way for an employee to avoid these types of issues from arising either during or after employment is to not use the employer’s computer or network for any personal business. While it can be inconvenient to consult legal counsel over these types os issues with employers, it can also be very costly to get it wrong and pay the costs of legal defense when an employer wants to pursue a former employee in some way.
Email and Internet Monitoring of Employees
Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. This cannot be overemphasized. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed of a company’s decision to monitor email.
Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.
VA Code § 18.2-152.5 provides for privacy protections for all individuals for unauthorized access. Specifically, the privacy provisions of the Virginia Code provide that:
A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to any other person. “Examination” under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.
Telephone and Voice Mail
Some employers also monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.
Security Camera Monitoring of Employees
With the widespread use and availability of small wireless cameras, a number of employers have attempted to monitor their employees using such technology. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but it is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.
Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.
Microchipping Employees as a Form of Monitoring
While definitely a potentially future issue, at least 1 employer recently was in the news for offering employees a microchip to facilitate employer tasks. Three Square Market, a technology company in Wisconsin asked workers to consent to having a microchip, about the size of a grain of rice implanted between their thumb and forefinger. Approximately 50 of the 80 company employees agreed to this procedure. The microchip will allow employees to check into work, access computers, open doors and purchase company food and drink.
This is clearly a major issue coming down the road, but is likely to take a number of years to develop through litigation. For instance, it could easily be the case where states vote to ban such a practice, in advance, or otherwise regulate it. For now, it is just something to keep in mind for the future.
Employee Monitoring Cases Nationally
While Virginia has not been subject to too many employment cases as of yet involving employee monitoring, the issue has reached a number of other states. a U.S. District Court has held that employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), the court ruled that an employer could read personal e-mails even when it had told employees it would not.
The U.S. Supreme Court, in Quon v. City of Ontario, 130 S. Ct. 2619 (2010), held that a police officer, through his department issued device had no expectation of privacy in his text messages, even though his commanding officer had promised him that his messages would not be monitored. In Quon, the Court held that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.
If you need assistance with Virginia employment law issues or issues involving the use of employee monitoring, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.