News
Labor/Employment
Mar. 1, 2002
'Intel' Emphasizes the Proprietary Nature of an Employer's E-mail System
Focus Column - By Niloofar Nejat-Bina - As employers grapple with the consequences of technological advances in the workplace, the Court of Appeal and Gov. Gray Davis have granted employers a chance to limit workplace liabilities.
Focus Column
By Niloofar Nejat-Bina
As employers grapple with the consequences of technological advances in the workplace, the Court of Appeal and Gov. Gray Davis have granted employers a chance to limit workplace liabilities.
In December, the court issued an opinion expressly recognizing an employer's right to protect its company e-mail systems from abuse at the hands of a disgruntled former employee. Intel Corp. v. Hamidi, 94 Cal.App.4th 325 (2001).
After he was fired, Hamidi flooded Intel's e-mail system with thousands of e-mails on six occasions. Hamidi ignored Intel's repeated requests to stop invading its internal, proprietary e-mail system and even took steps to evade Intel's security measures. Intel sought an injunction against Hamidi because his unsolicited e-mails required employees to "spend significant amounts of time attempting to block and remove Hamidi's e-mail from the Intel computer systems."
The court held that Intel's e-mail server was private property and upheld the injunction on the ground that Hamidi's conduct constituted "trespass to chattels," a tort that permits recovery for "interferences with the possession of personal property that are not sufficiently important to be classed as conversion."
The court explained that electronic signals generated and sent by computer are sufficiently physically tangible to support a trespass claim. Furthermore, the court found that Intel had a possessory interest in its computer systems.
Although Hamidi's conduct may not have "harmed" Intel's computer system in order to trigger damages, the court found that he had harmed Intel's business. Hamidi's conduct both "caused disruption to Intel's workers, who were drawn away from their jobs to deal with the messages," and deprived Intel of its ability to use its personal property - its e-mail server - for its own purposes.
Intel also was harmed by the "time its security department spent trying to halt the distraction after Hamidi refused to respect Intel's request to stop invading its internal, proprietary e-mail system by sending unwanted e-mails to thousands of Intel's employees on the system."
The court rejected Hamidi's and the American Civil Liberties Union's arguments that the injunction interfered with Hamidi's free speech rights in violation of the U.S. and California constitutions. The court concluded that "private e-mail servers differ from the Internet; they are not traditional public forums. Nor is a private company which chooses e-mail made a public forum ... . [Intel] is not a place where the public gathers to engage in expressive activities such as gathering signatures to petition the government, nor is its e-mail so used. The Intel e-mail system is private property used for business purposes. Intel's system is not transformed into a public forum merely because it permits some personal use by employees."
Intel confirms that employers have a proprietary interest in their e-mail systems and that current or former employees may use the employer's property in a manner that may be regulated or prohibited by the employer. For instance, an employer defending against an employee's invasion-of-privacy claim regarding e-mail monitoring may rely on Intel to argue that employees do not have a privacy interest associated with the employer's property. At a minimum, Intel gives employers the ability to block unwanted e-mail sent by individuals or entities that seek to disrupt the workplace.
Last week, the Court of Appeal further advanced the notion that employees have no reasonable expectation of privacy in the face of employers' proprietary rights in their computer equipment. In TBG Insurance Services Corp. v. Superior Court, 2002 WL 254139 (Cal. App. 2nd Dist. Feb. 22, 2002), the court ruled that an employee, who had been fired for accessing sexually explicit Web sites at work, had no reasonable expectation of privacy when he used his home computer for personal matters.
The employer had provided the employee with a home computer, and the employee had signed and acknowledged the employer's computer monitoring policy. The court stated that, by signing the employer's policy, the employee "fully and voluntarily relinquished his privacy rights in the information he stored on his home computer." TBG Insurance demonstrates that employers should maintain computer and e-mail monitoring policies and require employees to acknowledge such policies.
Employers should include provisions in their employee handbooks and policy manuals describing the employer's e-mail system as a proprietary, internal system to which the employer may, at its discretion, grant access for employees' personal use.
Such a provision should clearly state that the employer may routinely or randomly monitor employees' e-mail and that e-mail should be used primarily for business purposes. Employers also should inform employees that they may be disciplined or terminated if they engage in improper or illegal activities with the use of the company's e-mail system.
Recently, the Legislature passed legislation to force employers to create and disseminate such policies or, in the alternative, to lose the right to monitor employees' e-mail use. SB147 would have prohibited employers from secretly monitoring e-mail or other computer records created by employees. SB147 also would have required employers to create and disseminate a privacy and electronic monitoring policy providing notice of the intention to inspect and review e-mail or computer records.
However, Gov. Gray Davis vetoed SB147. He observed that "employees in today's wired economy understand that computers provided for business purposes are company property and that their use may be monitored and controlled." The governor further recognized that an employer can be held liable if its employees or agents use the employer's computer systems for improper purposes and that employers have a "legitimate need" to monitor company property, including e-mail.
The Legislature eventually may manage to create a law expanding employees' privacy rights in e-mail or other computer generated records and limiting employers' monitoring activities. Until then, employers are free to monitor their computer systems to ensure that employees are not using them for improper or nonbusiness purposes.
Employers also can rely on Intel to block unwanted e-mail or defuse employees' invasion-of-privacy claims. To take full advantage of TBG Insurance, employers should continue to provide advance notice to employees that they own and control their computer systems and may engage in monitoring activities.
Niloofar Nejat-Bina is an associate in the labor and employment group of the Los Angeles office of Akin, Gump, Strauss, Hauer & Feld.
By Niloofar Nejat-Bina
As employers grapple with the consequences of technological advances in the workplace, the Court of Appeal and Gov. Gray Davis have granted employers a chance to limit workplace liabilities.
In December, the court issued an opinion expressly recognizing an employer's right to protect its company e-mail systems from abuse at the hands of a disgruntled former employee. Intel Corp. v. Hamidi, 94 Cal.App.4th 325 (2001).
After he was fired, Hamidi flooded Intel's e-mail system with thousands of e-mails on six occasions. Hamidi ignored Intel's repeated requests to stop invading its internal, proprietary e-mail system and even took steps to evade Intel's security measures. Intel sought an injunction against Hamidi because his unsolicited e-mails required employees to "spend significant amounts of time attempting to block and remove Hamidi's e-mail from the Intel computer systems."
The court held that Intel's e-mail server was private property and upheld the injunction on the ground that Hamidi's conduct constituted "trespass to chattels," a tort that permits recovery for "interferences with the possession of personal property that are not sufficiently important to be classed as conversion."
The court explained that electronic signals generated and sent by computer are sufficiently physically tangible to support a trespass claim. Furthermore, the court found that Intel had a possessory interest in its computer systems.
Although Hamidi's conduct may not have "harmed" Intel's computer system in order to trigger damages, the court found that he had harmed Intel's business. Hamidi's conduct both "caused disruption to Intel's workers, who were drawn away from their jobs to deal with the messages," and deprived Intel of its ability to use its personal property - its e-mail server - for its own purposes.
Intel also was harmed by the "time its security department spent trying to halt the distraction after Hamidi refused to respect Intel's request to stop invading its internal, proprietary e-mail system by sending unwanted e-mails to thousands of Intel's employees on the system."
The court rejected Hamidi's and the American Civil Liberties Union's arguments that the injunction interfered with Hamidi's free speech rights in violation of the U.S. and California constitutions. The court concluded that "private e-mail servers differ from the Internet; they are not traditional public forums. Nor is a private company which chooses e-mail made a public forum ... . [Intel] is not a place where the public gathers to engage in expressive activities such as gathering signatures to petition the government, nor is its e-mail so used. The Intel e-mail system is private property used for business purposes. Intel's system is not transformed into a public forum merely because it permits some personal use by employees."
Intel confirms that employers have a proprietary interest in their e-mail systems and that current or former employees may use the employer's property in a manner that may be regulated or prohibited by the employer. For instance, an employer defending against an employee's invasion-of-privacy claim regarding e-mail monitoring may rely on Intel to argue that employees do not have a privacy interest associated with the employer's property. At a minimum, Intel gives employers the ability to block unwanted e-mail sent by individuals or entities that seek to disrupt the workplace.
Last week, the Court of Appeal further advanced the notion that employees have no reasonable expectation of privacy in the face of employers' proprietary rights in their computer equipment. In TBG Insurance Services Corp. v. Superior Court, 2002 WL 254139 (Cal. App. 2nd Dist. Feb. 22, 2002), the court ruled that an employee, who had been fired for accessing sexually explicit Web sites at work, had no reasonable expectation of privacy when he used his home computer for personal matters.
The employer had provided the employee with a home computer, and the employee had signed and acknowledged the employer's computer monitoring policy. The court stated that, by signing the employer's policy, the employee "fully and voluntarily relinquished his privacy rights in the information he stored on his home computer." TBG Insurance demonstrates that employers should maintain computer and e-mail monitoring policies and require employees to acknowledge such policies.
Employers should include provisions in their employee handbooks and policy manuals describing the employer's e-mail system as a proprietary, internal system to which the employer may, at its discretion, grant access for employees' personal use.
Such a provision should clearly state that the employer may routinely or randomly monitor employees' e-mail and that e-mail should be used primarily for business purposes. Employers also should inform employees that they may be disciplined or terminated if they engage in improper or illegal activities with the use of the company's e-mail system.
Recently, the Legislature passed legislation to force employers to create and disseminate such policies or, in the alternative, to lose the right to monitor employees' e-mail use. SB147 would have prohibited employers from secretly monitoring e-mail or other computer records created by employees. SB147 also would have required employers to create and disseminate a privacy and electronic monitoring policy providing notice of the intention to inspect and review e-mail or computer records.
However, Gov. Gray Davis vetoed SB147. He observed that "employees in today's wired economy understand that computers provided for business purposes are company property and that their use may be monitored and controlled." The governor further recognized that an employer can be held liable if its employees or agents use the employer's computer systems for improper purposes and that employers have a "legitimate need" to monitor company property, including e-mail.
The Legislature eventually may manage to create a law expanding employees' privacy rights in e-mail or other computer generated records and limiting employers' monitoring activities. Until then, employers are free to monitor their computer systems to ensure that employees are not using them for improper or nonbusiness purposes.
Employers also can rely on Intel to block unwanted e-mail or defuse employees' invasion-of-privacy claims. To take full advantage of TBG Insurance, employers should continue to provide advance notice to employees that they own and control their computer systems and may engage in monitoring activities.
Niloofar Nejat-Bina is an associate in the labor and employment group of the Los Angeles office of Akin, Gump, Strauss, Hauer & Feld.
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