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Electronic Communications: Why Employer’s Unauthorized Monitoring Of An Employee’s Private Web Site Spelled Trouble

Current and former employees are increasingly bad-mouthing their companies by posting negative and possibly defamatory comments about their employers on the Internet. And some employers have gone to great lengths to find out who is responsible. With layoffs on the upswing, employer-bashing is likely to grow as the number of disgruntled workers increases. Now a new case involving a worker who went on the offensive against an inquisitive employer shows the risks involved in tracking down what employees are saying about you electronically.

Pilot Sets Up Web Site

Hawaiian Airlines pilot Robert Konop set up a password-protected Web site where he wrote about his opposition to wage concessions Hawaiian sought from the Air Line Pilots Association union. He also blasted the union for supporting Hawaiian’s proposal and encouraged Hawaiian employees to support another union. Plus, Konop allegedly attacked airline president Bruce Nobles with thinly veiled fraud and incompetence allegations and comparisons to Nazis.


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Manager Sneaks Onto Web Site

Konop limited Web site access to certain airline employees and excluded managers and union representatives. Users had to agree not to disclose the site’s contents.Hawaiian vice president James Davis allegedly asked pilot Gene Wong if he could use Wong’s name to access Konop’s Web site. Davis reportedly logged on more than 20 times, assuming Wong’s username and password.The same day that Davis first visited the Web site, the head of the union reportedly called Konop to say Hawaiian’s president was so upset about the Web site’s allegations that he was threatening to file a defamation lawsuit.

Worker Sues Employer For Snooping

Konop sued Hawaiian, charging that the airline violated federal wiretap laws by gaining access to his Web site under false pretenses. Plus, Konop charged that Hawaiian interfered with his union-organizing rights and violated federal labor laws by informing the union of the Web site’s contents and by threatening to sue him for defamation. The airline responded that it had a legitimate reason to check out the Web site&151;to identify and correct false and defamatory statements, which the airline said federal labor laws don’t protect. Plus, Hawaiian argued that Konop had implicitly consented to Davis’ access by failing to block it after learning Davis was using someone else’s password.

Web Site Protected

The federal Ninth Circuit Court of Appeals said Konop’s lawsuit could go forward. The court explained that federal wiretap laws protect against eavesdropping on stored electronic communications, including the contents of secure Web sites. For unlawful eavesdropping to occur, the Web site must be unavailable to the public and accessed without consent. In this case, the court said there were factual questions about Konop’s efforts to restrict access to his Web site, so a jury will have to resolve the issue.

Interfering With Union Activity

The court also ruled that the contents of Konop’s Web site came within the scope of protected union-organizing activity, rejecting Hawaiian’s argument that the contents lost protection because they were defamatory. Opinions—even if insulting—are covered by the law, especially since Hawaiian had no proof that Konop knew his charges were false. Plus, the court said Hawaiian’s Web site surveillance could constitute illegal interference with workers’ organizing activities because it would tend to discourage them from openly discussing labor issues.

Proceed With Caution

This case serves as a warning that you risk violating federal wiretap laws, which has both civil and criminal penalties, if you access an employee’s restricted Web site without consent. Be sure to get professional advice before doing anything that could be considered unauthorized snooping.

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