Invasion of Privacy Claims by Employees

Most employees who have sued their employers for monitoring have done so under state invasion of privacy actions. In general, the employee must show that he or she had a reasonable expectation of privacy in the communication at issue. Because invasion of privacy is a state law claim, the standards vary among jurisdictions. In one case, Smyth v. Pillsbury Co., an employee was terminated for sending inappropriate and unprofessional messages over the company's e-mail system. The company had repeatedly assured its employees that e-mail was confidential, that it would not be intercepted, and that it would not be used as a basis for discipline or discharge. Michael Smyth retrieved, from his home computer, e-mail sent from his supervisor over Pillsbury's e-mail system. Smyth allegedly responded with several comments concerning the sales management staff, including a threat to "kill the backstabbing bastards" and a reference to an upcoming holiday party as "the Jim Jones Kool-aid affair." Pillsbury intercepted the e-mail and terminated Smyth, who then sued the company for wrongful discharge and invasion of privacy. The court dismissed the case in 1996, finding that Smyth did not have a reasonable expectation of privacy in the contents of his e-mail messages, despite Pillsbury's assurances, because the messages had been voluntarily communicated over the company's computer system to a second person. The court went on to find that, even if some reasonable expectation of privacy existed, that expectation was outweighed by Pillsbury's legitimate interest in preventing inappropriate or unprofessional communications over its e-mail system.