Employers face a serious challenge when trying to prevent employees from taking confidential and proprietary information with them when they leave to join a new employer—particularly when the new employer is a competitor. When an employer becomes suspicious about an ex-employee’s activities prior to his or her last day of work, there are a limited number of safe avenues for the employer to pursue.
Generally, an employer should not review the employee’s personal emails or text messages if they were sent or received outside the employer’s network. But what if the employee turns over his personal emails or text messages without realizing it? The answer is, as always, “it depends.” A recent case from a federal court in California addresses the issue in a limited context.
After the employee resigned, the employer sued him for misappropriating trade secrets. He filed counterclaims, accusing the employer of violating the federal Wiretap Act, the Stored Communications Act (SCA), and state privacy laws. The employee alleged that the employer had reviewed his text personal text messages on the iPhone issued to him by the former employer after he’d returned it but before he unlinked his Apple account from the phone.
All of the employee’s counter-claims were dismissed by the court. The court found that the Wiretap Act claim failed because there was no allegation that the employer had intentionally intercepted any messages. The SCA claims failed because there was no allegation that the employer had accessed any messages. And, perhaps most obviously, the privacy claims failed because the employee could not have had a reasonable expectation of privacy.
The court specifically found that the employee had “failed to comport himself in a manner consistent with objectively reasonable expectation of privacy” by failing to unlink his old phone from his Apple account, which is what caused the transmission of his text messages to his former employer.
Sunbelt Rentals, Inc. v. Victor, No. C 13-4240-SBA (N.D. Cal. Aug. 28, 2014).
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