Social Media Employment Law

Confidentiality From The Boardroom To The Bedroom

Sometimes we can learn valuable employment law lessons from even the non-employment law court decisions.  

What happens if the boardroom meeting to discuss your company’s trade secrets ends up as pillow talk between an employee and his or her spouse?   As I’ve been suggesting, notions of “confidentiality” and “privacy” when it comes to social media and electronic communications are going to be big topics for pundits in the coming months and years, and a recent decision by the 4th Circuit Court of Appeals provides an interesting takeaway.

In United States v. Hamilton, the defendant apparently sent some incriminating notes to his wife from his work e-mail account, and was unable to rely on the “marital privilege” to shield those notes from disclosure at his trial.   This was not an employment law case per se, but a criminal proceeding in which the defendant was convicted and sentenced for alleged bribery and extortion.   Defendant was a state legislator, and also worked as a part-time employee for the Newport News public school system.  At his trial, the jury found that defendant used his position as a legislator to obtain funding for, and an employment position with, a newly-formed “Center for Teacher Quality and Educational Leadership” at Old Dominion University.

One of his principal attacks on appeal was the trial court’s decision to allow the government to introduce into evidence certain e-mails that he sent to and received from his wife.   The appellate court began its discussion by recognizing that “[c]ommunications between . . . spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged.”   Yet, the court recognized the flip side of that coin:  “But, of course, to be covered by the privilege, a communication between spouses must be confidential; ‘voluntary disclosure’ of a communication waives the privilege.”  The government alleged that such a waiver took place when the defendant engaged in his communications through his work e-mail account on his workplace computer.

The appellate court agreed, analogizing today’s communications through an e-mail system to communications of the past made through the aid of a third-party stenographer.   In both cases, the supposed confidential communication has been voluntarily revealed through someone (or some domain), thereby breaking the privilege chain:

“In an era in which email plays a ubiquitous role in daily communications, these arguments caution against lightly finding a waiver of marital privilege by email usage.  But the district court [properly] found that [defendant] did not take any steps to protect the emails in question, even after he was on notice of his employer’s policy permitting inspection of emails stored on the system at the employer’s discretion.”

Employer Take Away:   What should you as an employer take away from this development?   

If something is meant to be confidential, keep it confidential.   Don’t send it in an e-mail to someone outside the company – even a spouse – under the auspices that some evidentiary privilege will forever cloak the communication.  

For one, make sure your electronic communications policy is most current and most effective, and, perhaps just as critically, make sure all of your employees know what is protected and what could be monitored.

Secondly, and this applies not only to employees, but to those of you who actually own the company as well, take similar care in understanding and advising everyone in the company that your trade secrets may no longer be afforded the same protection if they are disclosed to a third party through e-mails, even to your non-employee spouse.   As we continue to learn and confirm, social media and confidentiality make for strange bedfellows.

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