Can Employers Monitor Employee Emails?

According to a survey conducted by the U.S. Bureau of Labor Statistics,55% employees thought that their Internet usage and emails were not being monitored by their employers.

Many employees are under the misconception that their employers do not have the right to monitor the emails and websites that they access through the workplace Internet.

Employees also tend to incorrectly believe that their use and access of emails is private, and should not be breached by employers. However, the law appears to think differently on this matter.

In a world where trade secrets and business information are treated as 'Intellectual Property', it should come as no surprise that the emails being sent from the office is being surveilled.

If employers can make their employees sign a nondisclosure and confidentiality agreement, they are well within their rights to monitor the office emails of their employees as well.

In the past, multiple lawsuits have been filed by employees against private employers, based on invasion of privacy rights and the Fourth Amendment's prohibition of 'unreasonable searches and seizures' by government agents, government employers, and supervisors.

The courts have sided with employers, and deemed the act of monitoring employee emails an employer privilege, provided a notice is given to the employees about this company practice.

In 2000, the United States Court of Appeals for the Fourth Circuit upheld the right of the employer to conduct electronic audits as per its company policy. In the Federal District Court for the Eastern District of Pennsylvania case of Michael A.

Smyth vs. The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996), using the grounds of balancing-of-interests test, the court decided in favor of the company's interest, thereby allowing employers to prevent inappropriate and unprofessional behavior pertaining to email communications or Internet usage by employees.

Thus, employees can claim no right to privacy for non-work-related activities being carried out at the workplace, especially if the employer has disallowed employees from doing so through an email and Internet policy.

The employer must have a clearly written email policy in place, and must notify the employees of their practice of monitoring employee emails. Thus, once the employees have been notified about the company policy on monitoring emails, they cannot claim rights under reasonable expectation of privacy.

Companies that impose such monitoring must maintain an employee handbook that explicitly mentions the company's policies on email monitoring and other restrictions. Such a handbook usually explains in detail about the extent of monitoring being practiced by the company.

It also informs the employees not to expect privacy while dealing with emails during work. Such a handbook stating the company's policy is considered to be a sufficient step towards notifying the employees.

The federal law of Electronic Communications Privacy Act (ECPA) does not afford employees the privilege of claiming privacy protection for non-work-related emails and Internet usage. The email can be intercepted, as long as it is in transit, and emails can be audited as well.

However, the ECPA restricts employers for intentionally intercepting emails that are stored on the computer server. This ban on email interception has three exceptions, which gives companies the right to monitor the emails of their employee. The following exceptions that allow monitoring employee usage of emails are:

Consent exception: When the employee reads and acknowledges the email monitoring policy given by the employer.
Provider exception: The employer must be the sole provider of the system on which the employee works, and not a third-party servicer.

Therefore, employers are allowed to examine emails on the systems provided by them to the employees.
Ordinary-course-of-business exception: This exception allows employers to monitor emails sent during the ordinary course of a workday, and includes both work-related and personal emails that were sent from an office system.

The aforementioned exceptions and the employer's right to intercept emails were enforced in the 1993 case of Bourke vs. Nissan Motor Corp., in U.S.A., in which Nissan won the case. Using intercepted emails, Nissan was able to prove that it had not violated the privacy or unfairly dismissed two employees for sharing sexually explicit emails at the workplace.

Employers must not delay in implementing such an email policy, as such a policy can act as a handy tool against privacy claims, and prevents sensitive business information from being breached or leaked.