In 1980, Billy Joel sang about Sleeping With The Television On. Thirty two years later, having had Billy Joel melodies in my head all night, I’m blogging about Leaving With The Work Computer On. (Best I got this Monday morning.) After a brief early-summer hiatus, there’s a very interesting decision that was issued a few weeks ago in the case of Marcus v. Rogers (Superior Court of New Jersey, 6/28/12).
The case was brought by a group of teachers in the Saddle Brook School District in New Jersey. The school made computers available in a central school location, and teachers sometimes used them to check personal social media accounts. Defendant was checking his e-mail on a computer, and accidentally bumped the mouse of an adjacent computer, which removed that computer’s screensaver and revealed the e-mail inbox of a Yahoo account belonging to another teacher (who neglected to log out before leaving the room).
The defendant noticed that the subject line of the other teacher’s e-mail referenced defendant’s name, and he clicked on that e-mail string, read the e-mails and printed them to use at a future meeting being held to discuss an ongoing work-related dispute that was the subject of the e-mails. The other teacher then filed a lawsuit under various statutes that address the unauthorized access to electronic communications. The case ultimately went to a jury, which determined that the defendant did not act unlawfully. The standard at issue on the appeal was whether the defendant “knowingly accessed” an e-mail account facility “without authorization”, or in a manner that “exceeded an authorization to access that facility.”
The court first held that, as a matter of law, the defendant did not access the e-mail account facility without authorization because the index to the inbox was already displayed on the screen for anyone to see. Next, the court found that the jury properly determined that the defendant did not exceed any authority because there was “tacit authorization” to access the account once it was left open (whether you agree or disagree with that finding, that is presumably the province of a jury of defendant’s peers).
Employer Take Away: What should you as an employer take away from this development?
One the one hand, it seems like it would be an easy set of facts. Sort of like the schoolyard kid who says “sorry, you left the ball here, so now it’s mine.” But, these facts present complicated issues falling within often inter-related and inter-dependent statutes that seek to balance notions of rights to privacy and rights to monitor.
The Marcus case involved co-workers, but the message is clear for employers. Have appropriate policies in place when it comes to monitoring an employee’s computer (even an employee’s personal accounts being viewed on an office computer). And carefully consider the efficacy of reviewing an employee’s social media programs, even when the employee is sleeping with the television on.