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December 2003 - Fraser v. Nationwide Mutual Insurance Co. Client Advisory |
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A recent court decision is further support for the proposition that an employer has the right to monitor and read an employee’s e-mail. In the case of Fraser v. Nationwide Mutual Insurance Company, 2003 U.S. App. LEXIS 24856 (3rd Cir., Dec. 10, 2003) the 3rd Circuit Court of Appeals determined that Fraser, an employee of Nationwide, was properly terminated. The court also held that Nationwide’s search of Fraser’s e-mails did not violate the provisions of the Electronic Communications Privacy Act (ECPA). Fraser was accused by Nationwide of violating his Agent’s Agreement with Nationwide by drafting letters to competitor insurance companies. After becoming aware of the letters, Nationwide conducted a search of Fraser’s e-mail to determine whether there was additional evidence of his disloyalty. Nationwide claims it did find additional evidence and fired Fraser. The court determined that the search was done as part of an investigation into improper conduct which was the cause of Fraser’s termination, and that the ECPA only bans interception of electronic communications, such as e-mails, if it occurs at the time of transmission. Because the e-mails were stored on Nationwide’s system, Nationwide would be considered an “e-mail service provider” under the ECPA. Therefore, the ECPA was not violated since there is an express exemption for “e-mail service providers.” Fraser also argued that Nationwide violated the Pennsylvania counterpart to the ECPA. However, the court held that Pennsylvania statute is interpreted the same way as the ECPA, so that this statute was also not violated. |