FBI Sexting Revelations and Employer Monitoring

Sexting can happen in any large organization. This, according to an FBI response to NBC after disciplinary documents revealed last week that FBI employees used government-issued smart phones to access porn and send sexually explicit messages. Attorney Kim Ryan joined 9NEWS at 8AM to explain how these issues impact Colorado workplaces.

Some people have become so comfortable with communication technologies they forget they are creating an electronic footprint that may become permanent record. One report shows that nearly 1 in 5 Americans surveyed admits to having used a smart phone for sexting.

Many employers are taking workplace sexting seriously. According to some estimates, more than 80% of employers now monitor employees’ use of company computers and smart phones, up from 30% just a few years ago.

Some companies routinely observe employee emails and Internet use and even can track employee key strokes on company computers.

As justifications for monitoring, companies cite enforcement of workplace harassment policies, productivity, and protection of trade secrets. Companies also may have to turn over electronically stored information on computers and phones to their lawyers or their opponents’ attorneys when involved in lawsuits. This can be powerful evidence of companies’ efforts to comply with their obligations under anti-discrimination laws.

Generally, private companies have a legal right to engage in monitoring of company computer and phone systems, as long as they have given employees advance notice that workers do not have an expectation of privacy in the company systems. Government employers may search employee text messages as long as they comply with Constitutional rights to privacy, according to a recent U.S. Supreme Court sexting case.

Before engaging in monitoring, employers should have “Computer, Phone and Internet Usage” policies in place outlining the rules for employee use of company computers and smart phones. Companies should regularly update these policies with legal counsel to account for new and evolving technologies and uses, such as Twitter, Skype and social media, and they should clearly communicate the policies to employees.

If employers discover that company computers or phones are being used to harass other employees or engage in unprofessional conduct, they may discipline workers for violations of company policies, as the FBI reportedly did in this case when it suspended workers after discovering the sexting violations.

But grey areas may exist when it comes to employees’ private computers, smart phones, and social media, particularly when they are used off-duty with other employees for personal matters that are not clearly work related.

Currently, a privacy bill is pending in the Colorado legislature to prohibit employers from requiring disclosure of employee or applicant passwords to private electronic communication devices. It does not prohibit employer monitoring of publicly available information. It does not specifically prohibit employers from disciplining employees for postings on their own social media sites, although other state laws, such as the Colorado Lawful Off-Duty Conduct Act, may protect such postings depending on the circumstances.

Employees who believe they have been subjected to workplace sexual harassment by text messages or social media posts should consult with an experienced civil rights employment lawyer to discuss options for resolution.

Employers and workers alike should remember that every keystroke may be recorded, and they should carefully consider potential consequences before hitting the send button.

Kimberlie Ryan
Ryan Law Firm, LLC