Can a SC company look at personal emails or text messages of an employee? Does the company have that right? What rights does a SC employee have if that happens?
Are Personal Emails and Texts Protected on Your Personal Devices?
For most employees in South Carolina, use of personal text messages and emails to keep up with family and friends is an ever-present reality. We put all kinds of personal and private information in our texts and emails, including family issues, medical concerns, and even sexual conversations with partners or spouses. We have facial recognition and passcodes to protect that information from being accessed by others. The inadvertent disclosure of that information would be mortifying for most people.
But what about at work?
Are Work Emails and Text Messages Protected from Employer Snooping?
The answer is generally no. An employee has a reasonable expectation of privacy to this sort of personal communication, especially on personal devices. The issue arises, however, when the communication is on a company computer or device.
Generally speaking, a company can look at your work emails, your web search history on a work computer, and text messages on a company phone. These devices belong to the company, and it’s unlikely a court will buy the argument that an employee has a reasonable expectation of privacy in that context. One issue I see pop up frequently is when an employee leaves his or her employment and goes to turn in the company computer or laptop. If the employee was not careful in keeping all personal information and documents off the work computer, then that will need to be addressed at that point (and employers can get twitchy about making sure company information is not kept by the employee). Many employees save paystubs, copies of employment agreements or policies, personal pictures, tax returns, or other financial information to the company-provided laptop, and they would want to keep that information when they leave.
Best practice: never save any personal information or documents on a work computer or cell phone.
What About This Recent Case with Employer Accessing SC Employee’s Personal Email on Work Computer?
But what about when an employee logs into a personal email account on a company computer? Did the employee waive all rights to privacy in that context? In that scenario, can a SC company look at personal emails or text messages of the employee?
In a case from earlier this year, the Fourth Circuit Court of Appeals (into which South Carolina falls) addressed this very question. In Carson v. EmergencyMD, LLC (cite: 2023 U.S. App. LEXIS 3169, 2023 WL 1861053, unpublished), an employee, Amanda Carson, used her personal Gmail account for work purposes, instead of a purely company email account, and she did so with the company’s permission. She then used a shared company computer to access that email account. Several weeks after Carson was terminated, a company employee logged into the shared work computer and saw that Carson’s Gmail account was still logged in and open in the browser. (I’d venture to say that most people save their log-in information on a web browser to make accessing the email faster and easier.) The company employee printed out over a hundred of Carson’s emails and gave them to a supervisor at the company. These documents were later used against her in a separate lawsuit involving trade secrets that was active in state court already.
Carson’s case was based primarily on the federal Stored Communications Act (SCA), which prohibits someone, including a company, from intentionally accessing electronic communication without authorization. There’s a whole host of litigation about these types of cases, usually involving someone’s improper access of emails or text messages. In this case, the court determine that it was up to the jury ultimately to determine whether the employer intentionally accessed Carson’s emails without authorization through “a facility through which electronic communication service was provided.” Certainly the question–as to whether Carson leaving her Gmail logged in on the work computer was her “authorizing” the company to snoop through her persona emails–is one that a jury should normally decide after a full and complete trial, and not by a judge before all the witnesses can be heard. And ultimately the appeals court sent the case back down for a trial on those issues, which is set for later this year.
Take Care to Protect Your Information
The big takeaway for South Carolina employees is that you must exercise care and caution in making sure that your personal information is completely separate from your work equipment or systems. Because even if you can later sue your former employer for invasion of privacy or violations of the SCA or other state or federal laws, the reality is that your employer has already by that point accessed and reviewed a lot of information that no reasonable person would want exposed.
Horton Law attorney Jeremy R. Summerlin represents employees in Stored Communication Act cases and other employee privacy issues. If you have experienced this type of issue, you can reach out to set up a fact-specific consult to further discuss any legal options.