Whistleblowers Private Emails Monitored by FDA, Lawsuit Claims

By Cynthia Hsu, Esq. on February 07, 2012 | Last updated on March 21, 2019

Can a whistleblower's emails be monitored by an employer? Most general counsels will agree that the answer depends on several factors.

One factor may be whether or not the emails were sent on a work or a private home computer. Many companies explicitly disclaim that activity on work consoles do not warrant an employee's expectation of privacy.

But you can still get sued. It's a hard-earned lesson for even large government agencies like the FDA. The FDA is currently facing a lawsuit filed by current and former employees over their monitoring of employee emails.

The employees claim their private email accounts were monitored after they voiced concerns to congressional staff. The employees in question, doctors and scientists, worked in the part of the FDA that reviews applications to sell medical devices.

The employees believed that the agency was approving devices that would be a danger to patients, according to Reuters.

The employees claim they are whistleblowers. And they are entitled to legal protections. They allege that the FDA violated their right to free speech. They also claim the agency's actions amounted to illegal search and seizure.

Their suit comes despite warnings on FDA work terminals that specifically say the government may intercept data for any lawful purpose. Computers also warn employees that they have no reasonable expectation of privacy on the device.

But there's another element to the case. The employees say they were retaliated against. Some were admonished; others lost their contracts with the FDA.

There are several refresher lessons to be learned from the FDA whistleblower email case. One is to make sure employees are aware of privacy policies with regards to work computers. Another is to ensure managers and executives are aware that retaliating against whistleblowers is likely against the law. What do you think: do the employees have a viable case?

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