Quirky Question #283: They Stole Our Stuff, Can We Sue?

Question: My company recently terminated an employee, and we are very worried she accessed her email inappropriately in the days before she was fired. The timing of it all is … well, quirky.

Here’s what happened: The employee’s manager met with her on a Friday and informed her that her performance was not acceptable, even after several earlier warnings to improve.  The manager told the employee to go home early and return to work first thing Monday to meet with the manager and the manager’s supervisor.  The supervisor, manager, and employee met as planned on Monday and the employee was terminated.  Later that day, however, our IT folks reviewed her account and determined she had accessed her email dozens of times on Saturday and Sunday – there are no “sent messages” in her account, so we figure that she was printing off e-mail and maybe contacts because she saw the writing on the wall about the Monday meeting.

Our policies allow employees to access email from home – but we can’t think of any reason why she would have done so over this weekend and IT said she hadn’t logged in from home for at least six months. Needless to say, the timing is very suspicious, and we’re thinking about suing to find out what she did when she logged in.  Can we?

Answer: By Joel O’Malley and Jack Sullivan

Joel O'Malley

Joel O’Malley

How’s this for a flip answer: Anyone can sue.  The tougher question is whether the suit is worth the time and expense necessary given the likely results.  A recent federal court decision from Florida highlights a federal statute that employers sometimes use in these cases, but also how fact-specific the cases tend to be.

In Allied Portables, LLC v. Youmans, the owners of the company, Allied Portables, had a severe falling out.  As a result, one of the owners, Ms. Youmans, was fired from her position as manager of the company’s day-to-day operations.  That happened on August 29, 2014, which was the Friday before Labor Day.  On shutterstock_66713959the following Wednesday, after the holiday weekend, the other owner removed Ms. Youmans from her position as the leader of the ownership group.  The company later determined – and Ms. Youmans admitted – that she had accessed company email over the Labor Day weekend and downloaded emails onto her laptop computer.  The company sued Ms. Youmans, accusing her of violating a federal anti-hacker law (called the Stored Communications Act, or “SCA”) by accessing these emails without authorization.

The company sought a preliminary injunction against Ms. Youmans – a request the court rejected. The court decided that because Ms. Youmans was still the leader of the company’s ownership group on August 30, she “could plausibly be an authorized user” of its email on that date, even though she was fired from her day-to-day operations role a day earlier.  Because Ms. Youmans only accessed emails that had been addressed to her, the court concluded it was unlikely the company would win its claim against her and declined to issue an injunction.  The court’s discussion made it clear that an SCA claim is suited for situations in which a person intentionally accesses an electronic system and obtains access to an electronic communication without authorization – with the exception that the SCA does not apply to authorized users accessing messages intended for themselves.

The court in Allied Portables also evaluated claims that Ms. Youmans violated the federal Computer Fraud and Abuse Act, misappropriated trade secrets, wrongfully interfered with business relationships, and breached her fiduciary duties and concluded the facts did not warrant an injunction against Ms. Youmans with regard to those claims, either.

The Allied Portables case underscores the importance of knowing what documents or information might be in the hands of your former employee.  In Allied Portables, for example, the ousted owner kept a detailed report that included information on the pricing, customers, and business practices of the company.  The court concluded that the information likely constituted trade secrets under Florida law – but because it was more than a year old, the ousted owner’s possession of it didn’t pose a substantial threat of irreparable injury and so an injunction wasn’t warranted.

Joel O'Malley

About Joel O'Malley

Joel offers practical, business-driven advice to corporate clients and human resources professionals, helping them navigate the ever-changing and complex landscape of local, state, and federal employment laws. He provides......

Jack Sullivan

About Jack Sullivan

Jack is an associate in Dorsey’s Labor & Employment group, where he focuses his practice on employment advice, litigation, and traditional labor-law issues. In his advice practice, Jack helps clients......

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