October 2013 CBA REPORT
data, program, system or information to
its condition prior to the offense.”
Other Common Employee
Employers also commonly use many
other monitoring mechanisms in an
effort to deter employee theft, includ-
ing: attendance and time monitoring,
email monitoring, firewalls, and social
network monitoring. Generally, these
mechanisms are considered to be legally
Even if a particular monitoring
mechanism is legally permissible, an
employer should still compare the ben-
efits of deterring employee theft with the
impact that such monitoring techniques
may have on the relationship between the
employer and the employee. Further, an
employer should always put employees
on notice of any techniques that will be
used, and detail these techniques in an
employee handbook or other materials
that the employer makes available to
This piece briefly discussed different
techniques and enforcement mechanisms
related to the prevention of both physical
and non-physical employee theft from
employers. This piece is designed to give
a brief overview of these mechanisms
and to make employers aware of some
common issues that may arise if these
mechanisms are implemented.
Barker is a partner and a member of Kohnen &
Patton’s business law and transactions, employment
law and litigation practice groups. Her practice is
focused on business and employment litigation and
general business consultations. Ms. Barker has civil
trial experience in state and federal courts in Ohio
and Kentucky. Wolfenden is an associate of Kohnen
& Patton’s business law and transactions practice
group. He graduated from the University of Cincinnati
College of Law, magna cum laude, in 2012. During his
second and third years, he served as a corporate law
fellow, primarily performing research for the Corporate
Law Center on corporate, business, and securities law
1 This piece does not examine the possible issues involved
with employee theft or employee monitoring in public
18 U.S.C. § 2510-2520.
e.g. United States v. Koyomejian
, 970 F.2d 536, 537 (9th
4 18 U.S.C. § 2510(2).
5 Ohio law recognizes four invasion of privacy causes
of action: (1) intrusion of seclusion; (2) false light; (3)
public disclosure of private facts; and (4) appropriation
of another’s name or likeness.
113 Ohio St.3d 464, 866 N.E.2d 1051 (2007).
See Peitsmeyer v. JacksonTwp. Bd. ofTrustees,
10th Dist. No.
02AP-1174, 2003-Ohio-4302, at ¶27-28.
7 94 Ohio St. 3d 275, 281 (2002).
. at 279.
10 29 U.S.C. § 2001
United States Department of Labor,Wage and Hour
Fact Sheet #36: Employee Polygraph Protection
Act of 1988
, available at:
12 29 U.S.C. § 2006(d)(1-4).
13 EPPA Regulation § 801.14(a).
14 117 Ohio St. 3d 58 (Ohio 2008).
Al Minor & Assocs
., 117 Ohio St. 3d at *58.
, 2011 Ohio App. LEXIS at *11.
17 2010 U.S. Dist. LEXIS 93442 (E.D.N.Y.Aug. 2, 2010).
19 18 U.S.C.A. § 1030.
20 § 1030(a)(5).
21 § 1030(e)(11)
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