Textual Harassment

Trouble Investigating 'Textual Harassment' is an interesting Nov. 3, 2009 article from the Texas Lawyer. It is about sexual comments that may arise in text messages and the fact that some of those messages may be written after hours. What may have been a typical he said/she said case is no more because there is written documentation of what was said.

The article summarizes the law with respect to whether employers are entitled to discover the text message under the Stored Communications Act as well as other statutes. As the article states:

Recent cases interpreting the SCA and ECPA suggest, however, that an employer may not be allowed to access information from personal electronic communication accounts, which would include text messages, even if they are accessed through an employer's electronic equipment.

According to the U.S. District Court for the Southern District of New York's opinion in Rozell v. Ross-Holst (2007), an employee claimed she was fired in retaliation for reporting sexual harassment. Her employer paid for her private e-mail account. After the employee's termination, the employer accessed and read the employee's private e-mail account and read her personal e-mails, including those to and from her attorney. The former employee accused the company of violating the ECPA by "hacking" into her account, even though the employer paid for the service. The court held that the employer was not automatically authorized to access the account simply because it paid for it.

In a 2008 opinion from the U.S. District Court for the Southern District of New York, Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp LLC, the employer sued a former employee to enforce a noncompete agreement. The employee inadvertently left his access information for his personal e-mail accounts on the company's computer when he left his job. The employer discovered this information, accessed the accounts and printed e-mails, including one from the former employee to his attorney. The employer believed that it had the right to access the accounts based on a handbook provision that read "e-mail users have no right of privacy in any matter stored in, created on, or received from, or sent through or over" the employee's work computer. The court disagreed and ruled the policy did not expressly cover employees' personal accounts. Consequently, the court found that the employee had a reasonable expectation of privacy in his private e-mail accounts and the employer's review of them violated the SCA.

Mitchell H. Rubinstein