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What if you were caught texting, or “sexting” as it’s sometimes referred to these days, your wife, husband, boyfriend or girlfriend using your employer issued BlackBerry, iPhone or computer?  Is there an expectation of privacy or do employers have a right to monitor how their electronics are being used?  A California court decided on the side of the employee recently.  But it’s not over yet, says A. Harrison Barnes, attorney and founder.  In fact, the employer, a California area police department, is appealing the decision.

The case began when the department investigated what it believed were excessive amounts of text messages that were showing up on the bills each month.  What they found is one SWAT sergeant was not only sexting his girlfriend, but his wife as well.  Turns out, they’re all co-workers.  One can only imagine how awkward it was in the break room of that precinct!  Incredibly, all three sued their department and argued their expectation to privacy had been violated and that those messages were confidential.

The case is now with the U.S. Supreme Court, says A. Harrison Barnes.  One thing is for sure, says the founder, “this will certainly have long reaching ramifications, regardless of how the Court rules”.

So…should employees have the right to expect privacy even when communications are courtesy of technology that does not belong to them?  There are many labor attorneys who are watching closely.  We also suspect there’s bound to be a divorce attorney or two involved in this specific case, as well.

There are a few statistics that are more than revealing.  One study that was conducted by both the AMA and ePolicy Institute showed that more than 80% of employers have procedures in place that addresses the use of company property for one’s personal use.  Only 28%, however, have used those policies to discharge an employee and even then, it was not until warnings had been extended and the employees used the gadgets “excessively”.    Here’s the shocker, though.  Almost three quarters of American businesses have monitoring programs in place and can read any email anytime with the click of a few buttons.  Less than half, around 48%, actually read an employee’s emails and text messages.

These new technological advances come with a price, says A. Harrison Barnes.  He says he expects to see more cases similar to these as time moves forward.  And what does the founder suggest?  “Actually, it’s simple; reserve company electronics for doing business and nothing more”.

For now, all parties are awaiting the Supreme Court’s ruling, which is expected to come down sometime in late summer 2010.  It’s one case that’s worth monitoring.

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