A recent Federal District Court decision highlights the pitfalls of accessing a former employee’s personal Gmail account. Employers should be aware of the risks of accessing such information even when they have a legitimate business reason for accessing it.
In Levin v. ImpactOffice LLC in the United States District Court for the District of Maryland, an employer and several former employees were engaged in a dispute over post-employment competition. One of the former employees, Melissa Edwards, returned her company provided cell phone. After termination, the employer became suspicious that she may have engaged in anti-competitive activity in violation of a non-competition agreement. Edwards had deleted her personal emails that had been stored on the phone. However, she left the phone logged into her personal Gmail account. The employer logged into that account on numerous occasions and forwarded her emails to its own email server.
Edwards eventually filed a complaint against the former employer alleging a violation of the Stored Communications Act. At this point, her claim against ImpactOffice, LLC has survived a Motion to Dismiss and is proceeding forward in litigation. The Court held that the Stored Communications Act is violated when a person “intentionally accesses without authorization a facility through which an electronic communication service is provided” and “thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system.”
Essentially, the Court has found that the employer may be liable for its activities. The Stored Communications Act provides that injured parties may recover statutory damages and attorneys’ fees.
No doubt the employer thought it had a legitimate reason to investigate whether Edwards had engaged in anti-competitive activities while she was still employed with the company. However, a better practice would have been to seek legal counsel before making the decision to access that information. There were likely better and safer ways to access that information through the litigation process. Now the employer is faced with a potentially expensive litigation that could result in Edwards receiving statutory damages and recovering her actual attorneys’ fees.