In most cases, whether monitoring is legal or not comes down to two questions:
1) Who owns and stores the email, and
2) Did the employee reasonably expect the email to remain private?
Email Monitoring and Workplace Privacy
No emails sent or received through a company email account should be considered private.
"The federal Electronic Communications Privacy Act makes clear that workplace e-mail [is] the property of the employer, and employees should not expect privacy when sending, receiving, downloading, uploading, printing or otherwise transmitting electronic messages," -ePolicy Institute
It is commonplace for occasional, personal use of the Internet to be used at work, blurring the lines between business and personal. While it typically does not raise much concern, it can become a very complex issue when it comes to employers monitoring employee activity on company computers and an employee’s reasonable expectation of privacy.
Email monitoring is often used to investigate an employee who may have committed an infraction, and, in most cases, companies have a right to gather evidence contained in emails employees send while they’re at work, including those from a third party (Gmail or Yahoo, for instance). The most common kinds of infractions regarding emails are a violation of company policies, inappropriate language, excessive personal use, or breaking confidentiality.
According to the e Policy Institute, "The federal Electronic Communications Privacy Act makes clear that workplace e-mail [is] the property of the employer, and employees should not expect privacy when sending, receiving, downloading, uploading, printing or otherwise transmitting electronic messages,"
Courts have ruled that if an employer owns the computers, runs the computer network, and has a compelling reason to read a email (such as suspicion of sending proprietary or inappropriate information to a competitor, or suspicion of sexual harassment), then the company can read personal emails, too, if done on company equipment.
Most companies have a written policy on electronic communications that include information about computer activity in the workplace being monitored in their employee handbook.
When it comes to personal emails on a workplace computer, the law can get a little murky and dependent on a factor of issues. For instance, an employer is entitled to monitor all activity done on a company issued equipment, including computers, laptops, cell phones, and even vehicles, if your personal emails are part of what is included in that monitoring, then it can possibly be read.
While regarded as unresolved in the legal spear because courts have decided both in favor of the employee and employer, what is certain is that there should never be an expectation of privacy at work when it comes to using company equipment for personal use, even if it is just to check your personal email. Your first act of defense is to understand the way your company accesses and uses your data and read your company’s computer use policy.
If you are concerned that your likeness has been misused or your privacy invaded, contact Wilson Legal Group and discussion a Likeness & Invasion of Privacy Litigation.
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All information and summaries are intended as informational only regarding legal trends and news. Nothing should be taken as legal advice or legal opinion and readers should seek out advice from legal counsel prior to acting on information provided by this blog.