To return home, Odysseus, the hero of Homer's epic poem "The Odyssey," must pass the island of the Sirens. Through their beautiful voices, the Sirens lure sailors into rock-filled waters, where the sailors are destined for a quick and unfortunate demise.

When a former employee defects to another company or leaves to start a rival company, employers investigating the circumstances of the departure frequently fall victim to a new digital form of the Sirens' call. Instead of enchanted creatures, employers are now lured by access to former staffers' personal email accounts through information stored on electronic devices used for work. And, while they may find a treasure trove of evidence that indicates malfeasance by the former employee, these discoveries likely constitute a breach of civil and criminal law.

The Stored Communications Act (SCA) states whoever (1) intentionally accesses, without authorization, a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system, shall be [liable].

Employers frequently run afoul of this law when a former employee returns a work computer or work phone.

For example, an employee quits their job, returns the work computer and strikes out on their own with a competing business. The employer is incensed that the training and goodwill provided the former employee has created a new rival. When the employer looks on the work computer, they find a username and password for a personal email account stored on the computer. They open the account without permission and read email after email detailing the efforts to compete with the former employer. Many of these emails were written during work, and some of these emails indicate that the employee has planned to go after the former employers' customers.

The employer is now aware that their former employee might have engaged in acts that could subject the former employee to liability. Unfortunately, coming forward with this information can expose the employer to liability from the SCA, including fines, attorneys' fees, punitive damages and even criminal liability. In fact, the liability under the SCA frequently is considerably greater than the liability the former employee might incur based on their breaches of different common-law duties.

Defecting employees create a number of business and legal challenges. Following wise counsel and his own good judgment, Odysseus led his crew away from the Sirens' temptation and the attendant danger that befell many a less noble traveler.

Employers investigating actions of former employees need to follow his example, seeking guidance and exhibiting discipline to avoid crashing into the rocks.

Originally published in Memphis Business Journal

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