Rights, Policies Email Privacy and Employee Email Monitoring by Employers

  1. When it comes to your work email account, you may not have a right to privacy in your online communications.

    Company Email May Be Monitored

    Most workplace email and other communications systems used by employees can be monitored by the employer. The AMA (American Management Association) conducted a survey which revealed that a significant percentage of businesses regularly monitored the emails of their employees. Of those employers who monitored employee emails, a significant percentage had actually fired an employee for misuse of company email.

    Why Companies Monitor Your Work Email

    Employers are most frequently interested in monitoring emails written by employees at work so as to avoid legal liability. An email creates an electronic document that would constitute electronic evidence that must be handed over by an employer to a plaintiff’s lawyer in the case a lawsuit is filed. (The process is called electronic discovery or “e-discovery” for short.) The AMA survey also revealed that a significant number of lawsuits were filed based upon evidence found in employee emails. A company may wish to make sure that certain employee emails do not contain offensive content which could expose the company to sexual harassment or discrimination lawsuits. If the company is aware that some wrongful conduct may be occurring in email, it may wish to monitor the situation to ensure that employee misconduct does not continue to arise to dangerous levels.

    Is My Email Private?

    The answer is generally no when it comes to workplace email. The company owns the email system and is also liable for acts of its employees. Courts have generally sided with employers when it comes to reading email messages of their employees, however, the employer must have a valid reason for reading the emails.

    Corporate / Business Email Policy

    Most companies will protect themselves in terms of email monitoring by creating a company policy for email that is usually contained in an employee handbook. The company policy usually makes it clear and human resources staff will routinely educate employees that emails are monitored and that employee email accounts are not private. Some companies go a step further and require employees to sign a form which acknowledges that company email is not private.

    Even if a company does not have a policy in place regarding the monitoring of emails, it probably has a right to monitor emails. This is because the email was created sent using its network and equipment and the company has an interest in ensuring that the employee does not create corporate liability through misuse of the email system.

    There are some exceptions to the general rule where companies do take steps to provide employees with the appearance of personal privacy. Where there is a greater expectation of privacy, an employee may have a stronger case against an employer who read the employee’s emails without permission of the employee. Even in those cases, if the employer had a compelling and convincing reason to have read the private emails of an employee, then it is more likely that the courts would still side with the employer’s email monitoring practices.

    How Do Employers Monitor Your Emails?

    Employers monitor employee emails in a variety of ways and, in many instances, deleting an email does not mean that it has disappeared entirely from the system.
    • Some email systems contain filters that may look for keywords in emails that are sent.
    • Some networks have “keylogger” software that might monitor all the letters and words typed into an individual computer.
    • Backups and copies of emails are usually saved by the email software, including drafts. As a result, even if you delete an email and a draft, a backup copy might still be present somewhere on the employer’s computer network. This can create a problem for companies who may need to produce these emails for e-discovery requests for electronic evidence.
    There are many people who write emails just to get things off their chest and then never send them. They think that once they have deleted this email that it is gone forever but this may not be the case. Computer forensics and e-discovery processes may make recover these emails for electronic evidence purposes. Great care is taken by large companies to make sure employees do not leave a trail of electronic evidence.

    How to Avoid Email Trouble at Work

    The best way to stay out of trouble when it comes to your workplace email is to treat it in the same way that you would treat your business phone. Limit any communications with your friends and family and do not send any messages that may be interpreted as unkind, mean spirited, off-color, racially charged or controversial – even if you think they are funny or lighthearted. Not everyone may see your emails the same way that you do. Never send anything that you would not like your employer to see or another colleague.

    What is Webmail or Web-based Email?

    Webmail usually refers to email that you can use within your web browser such as in Internet Explorer or Mozilla Firefox. Examples of common web-based email are Hotmail, Yahoo Mail and Gmail. These email systems may be permitted by your company who understand that employees may wish to occasionally check their private and personal email accounts. They do not leave the same kinds of permanent electronic evidence on company resources and may not be considered as challenging to a company. Regardless, it is imperative to check with your employer as to the company policy using web-based email. It is still possible for your employer to know you’ve used webmail (a log may record your accessing webmail) and also potentially to read it (although not usual, by using keyloggers and software that can record what is viewed on your screen, etc.) If you have privacy rights, webmail would provide for that possibility more than using work or corporate email.
    Employment & Labor:
    Employee Privacy

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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