Delaware businesses must have a written electronic-monitoring policy if they want to monitor phone, e-mail, or computer usage by employees. Delaware law requires employers to get either a signed consent from employees or to have a message conveying the policy that is shown to the employee each time he logs on to the computer. And even in states without such laws, unless you have a written policy that communicated to employees, you stand to risk a privacy claim. The key is to ensure that your employees do not have a “legitimate expectation of privacy” in their use of your electronic systems.
And that’s where your policy comes in. Current is the key. The modern trend in electronic-communications policies has been to include provisions specific to blogging, cell-phones, and text messaging. We often counsel clients to improve their policies to reflect the state of technology. It seems that we have a lot in common with the Mayor of Detroit, Maybe Kwame Kilkpatrick.
Mayor Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private. As you may recall, Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers’ trial that they didn’t have a romantic relationship. Sexually explicit text messages have contradicted that testimony. Kilpatrick’s lawyers say federal law protects the release of such communications. The policy began Thursday, April 16, 2008.
Past policy had been that electronic communications were public. The mayor’s office said in a statement Thursday that city policies are always subject to change. Hmmm. I suppose that employers might want to ensure privacy in electronic communications is preserved instead of eliminated Especially if they have something to keep very private.