Speaking of Technology in Labor and Employment Law

When it comes to workplace surveillance, usually you think of employers -in Big Brother fashion- monitoring the email and phone calls of their employees.  But, look out Big Brother; Little Brother has eyes too. Here are two stories in which employees are the ones doing the monitoring:

First, thanks to Sharon Steckler for sending me this Easterbrook decision about an IRS employee.  From the opinion:

"Szymuszkiewicz was in trouble at work. His driver's license had been suspended for driving while drunk. This threatened his job because, as a revenue officer, Szymuszkiewicz was required to travel to delinquent taxpayers' homes. He worried he might be fired. One response, a jury found, was to monitor email messages sent to his supervisor, Nella Infusino. She found out by accident when being trained to use Microsoft Outlook, her email client."

Szymuskiewicz had set up his boss's email account so that every email sent to her would also go to him (an auto-forwarding rule).  This was a bad idea.  Not only did he violate the Wiretap Act for intentionally intercepting electronic communications, he didn't even intercept anything of use.  Catching nothing of use  was no defense.  Neither was it a defense that the emails were not "in flight" when he caught them as the interception does not have to be contemporaneous. (In a normal wiretap setting you think of a person contemporaneously listening in on a telephone conversation.  But would it be wiretapping to listen to someone's voicemail, where the call has already arrived?  In the context of email forwarding the Court didn't give weight to the fact that the emails had already arrived when they were stolen). 

Second is the tale of a Social Security Administration employee.  As the Molly DiBianca posts at the Delaware Employment Blog,

"Roberto Rodriguez worked for the Social Security Administration (SSA) and had access to the SSA’s databases as part of his job duties. The SSA’s policy prohibits its employees from using the databases for non-business reason. Rodriguez violated this policy when he looked up personal information about various women that he knew and had met. He looked up his ex-wife’s earnings history and the address of a woman he met at a church study group to send her flowers on Valentine’s Day.  Rodriguez was found guilty on 17 counts of violating the CFAA [Computer Fraud and Abuse Act]."

A lot of times we complain that the law can't keep up with the technology.  But in these cases it looks like the law was up with the technology and the problem may be that the employees didn't fully understand it or its consequences.