We’ve all said something we shouldn’t have…but writing the personal comment in an e-mail and sending it through your company’s e-mail system, is not the time and place.

Factual Background

Michael Smyth, an at-will employee of The Pillsbury Company, claimed he was wrongfully discharged from his managerial position at the company.  Smyth said The Pillsbury Company invaded his right of privacy by wrongfully intercepting e-mails the company assured would remain confidential.

The Pillsbury Company maintained an e-mail system to promote internal communication amongst its employees. The Company repeatedly told its employees that all e-mails would remain privileged information and could not be used against its employees as grounds to terminate their employment.

Smyth received an e-mail from his supervisor through the company’s e-mail system on his computer at home.  The Pillsbury Company alleges that Smyth responded to the supervisor with emails that contained threats to “kill the backstabbing bastards” and referred to the planned Holiday party as the “Jim Jones Koolaid affair.”  Nearly five months after the interception, The Pillsbury Company terminated Smyth’s employment for transmitting what it deemed to be inappropriate and unprofessional comments.

The E-Discovery Issue

The issue here is whether the termination of Smyth’s employment was a violation of public policy because The Pillsbury Company wrongly intercepted his e-mails and intruded on his common law right to privacy.

Opinion of the Court

The court recognized that if the discharge of an at-will employee clearly threatens public policy, then there is a cause of action against an employer; however, the court further recognized that this public policy exception is extremely narrow.  Public policy is violated upon termination of an at-will employee when: (1) the employee is fired for serving jury duty, (2) the employee is not hired because of a prior conviction or (3) the employee is fired for reporting violations of federal regulations.  For Smyth, none of these circumstances were present.

The court also addressed Smyth’s claim that The Pillsbury Company violated his right of privacy.  The court looked at Borse v. Piece Goods Shop, Inc. In Borse, the court of appeals refers to Restatement (2^nd) of Torts § 652B, which says that  if one intentionally intrudes, physically or otherwise, on another’s private affairs, then that person is liable if the intrusion would be highly offensive to a reasonable person. See Borse v. Piece of Goods Shop, Inc., 963 F. 2d 611 (3^rd Cir. 1992).  The court then applied a balancing test of the employee’s privacy interest against the employer’s interest in maintaining a safe working place.

Applying the Restatement and the decision in Borse, the court found there was not a reasonable expectation of privacy in e-mail communications voluntarily made on the company’s system to not be intercepted by management. Once Smyth sent the e-mail, any reasonable expectation of privacy was lost. In addition, the court says management did not require Smyth to disclose any personal information that could have been an invasion of privacy. Instead, Smyth voluntarily sent the alleged unprofessional comments over the company’s e-mail system.

The court also said they did not find that a reasonable person would consider The Pillsbury Company’s interception a substantially or highly offensive invasion of privacy. Applying the Borse balancing test, the court found, The Pillsbury’s Company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighed any privacy interest of Smyth’s in those comments.

The Takeaway

No matter how many times an employer assures privacy, when dealing with the company’s e-mail system, there is a limit to the privacy.  When the company’s interest to protect its employees and maintain a professional working environment outweighs the employee’s privacy interest of making degrading or threatening comments, then the employee can be fired.