Employers’ ability to monitor e-mails sent by employees at work is a hot topic in privacy law and is being addressed by a growing number of courts around the country as the law works to catch up with technology.  In Chicago, the Seventh Circuit Court of Appeals gave reason to view this issue from a different perspective, finding that an IRS agent violated the Wiretap Act by secretly setting up his boss’s e-mail account to forward all received e-mail messages to his own account.  United States v. Szymuszkiewicz.

David Szymuszkiewicz worked as an IRS agent and his job required that he visit delinquent taxpayers’ homes.  After losing his driver’s license for driving while drunk, he became concerned that he might lose his job and decided to secretly monitor all e-mails sent to his supervisor.  The Wiretap Act makes it unlawful to “intercept” electronic communications.  While Szymuszkiewicz argued that he did not violate the Act because he did not intercept any communications during transmission as one might intercept a telephone call by tapping a phone line, the Seventh Circuit rejected this argument. It held that an interception need not be contemporaneous, and that Szymuskiewicz’s use of the auto-forward feature in Outlook met the statutory definition. The court also clarified that its analysis applies equally to digitally transmitted telephone calls, which are sent in a manner similar to e-mail transmissions.

While the decision is a reason for caution, it does not mean that employers must abandon their existing communications policies.  Courts have ruled that employers are not subject to liability under the Wiretap Act for monitoring employees suspected of violating company policy if the monitoring serves to protect the company’s “rights and property.”  Also, employers have a legitimate argument under the Act that they are not liable for monitoring employee communications if the monitoring occurs in connection with “an activity which is a necessary incident to the rendition of [the employer’s] service.”

Nevertheless, employers should act carefully when monitoring employees’ electronic communications, as this area of the law is developing rapidly and the rules vary from jurisdiction to jurisdiction.  Among other things, employers should ensure that they have up-to-date policies placing employees on notice that their communications may be stored, monitored and reviewed, and should strongly consider requiring all employees to sign an acknowledgement and consent to such policies as a condition of employment.

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Biography

• Luke L. Glisan
  llg@franczek.com
  312.786.6117

Luke represents employers in labor, employment and employee benefits related matters. He counsels employers in all areas of employment and labor law, including compliance with discrimination, harassment and wage laws. Luke also represents employers in a broad range of litigation matters involving federal, state and local labor and employment laws. His employee benefits practice focuses on ERISA litigation involving multi-employer pension and welfare plans. Luke practices before federal and state courts and administrative agencies.

Prior to joining the firm, Luke served as a law clerk to the Honorable Paul R. Cherry, U.S. Magistrate Judge for the Northern District of Indiana.

Luke worked pro bono with a group of education, business and legislative leaders to create the Burnham 2.0 Plan to reform Illinois' public education system.  The Plan aims to prepare students in the public education system for productive membership in a global society by increasing their likelihood of graduating from high school and giving them the tools required to be workforce or college ready.  Luke also served as a “Principal For a Day” on October 21, 2010, with Dvorak Academy, the firm’s Chicago Public Schools’ partner school.  Additionally, he serves as a member of the Juvenile Diabetes Research Foundation Young Leadership Committee

• William R. Pokorny
  wrp@franczek.com
  312.786.6141
  

Bill represents management in a wide range of labor and employment matters.  He concentrates his practice on litigation and counseling in areas including discrimination, disabilities, ERISA and employee benefits, employment contracts, covenants not to compete, wrongful discharge, wage and hour law, the Family and Medical Leave Act (FMLA), and labor relations.  He represents employers before state and federal courts as well as administrative agencies such as the Equal Employment Opportunity Commission and the Illinois Human Rights Commission.  Bill has experience in a wide variety of industries, including manufacturing; utilities; health care; insurance; financial services; staffing; retail; hospitality, including restaurants and hotels; nonprofit; education, including higher education; and local government.  Bill also has experience representing educational institutions in a variety of non-employment related litigation matters.

Bill joined the firm in February 2006.  Previously, he worked at the law firms of Wildman Harrold Allen & Dixon LLP (2003–2006) and McDermott Will & Emery LLP (2001–2003).  He is a member of the Chicago, Illinois State and American Bar Associations.

Bill is a co-author of the firm’s FMLA Insights Blog.  When he is not practicing law, Bill serves as a high school youth advisor and Board President at his church, and he is an avid cook and photographer.

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