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Employer Monitoring of Employee’s Electronic Communications

Several decades ago, employers’ rights to monitor employees’ communications were generally well-defined. While employers could monitor business calls, they could not, with a few limited exceptions, eavesdrop on employees’ personal phone calls. Today, employee communication has become high-tech.

Employees routinely use email, voicemail, and the Internet at work for both business and personal reasons. Employers are concerned about issues like worker productivity, the introduction of inappropriate material into the workplace, and liability for sexual harassment. Employees are concerned about their privacy. What was once a fairly straightforward issue has become an emerging legal battleground.

Despite the uncertainty, there are some general rules.

Email Communication

Despite challenges by privacy advocates, the present law generally allows employers to read employees’ email messages, unless an employer policy specifically provides that such messages are private. Although there have not been many cases on the issue, courts to date have not found an expectation of privacy in employees’ email communications. One court even found that no such expectation existed, even though the employer had assured an employee that it would not read his email communications.

Although Congress passed the Electronic Communications Privacy Act of 1986, which purports to prohibit the willful interception of a person’s electronic communications, this Act has failed so far to lend much assistance to employees seeking to shield their email communications. Courts have interpreted the Act to apply only to interceptions that occur at the same time the communication is sent. Thus, the Act does not apply to employers reading communications located on their email servers. Some courts have also found that employers are excepted from the Act under the “provider exception,” which states that the Act does not apply to those who provide the email service. The Act also provides that it is lawful to monitor communications for business purposes or to monitor electronic communications where one party to the communication has consented to the monitoring. Some employers inform their employees that by using the email system, they are consenting to their email messages being monitored.

Because the law is uncertain, employers wishing to retain their freedom to monitor their employees’ email should include clear notification to their employees that their email communications will be monitored. Such a notification limits an employee’s ability to allege that he or she had an expectation of privacy in those communications. Several bills introduced in the House and Senate to require employers to inform their employees of ongoing electronic monitoring have died in committee.

Internet Usage and Voicemail Communications

At present, there appear to be no solid limits on an employer’s right to monitor employees’ Internet usage or voicemail communications either. As with email monitoring, however, employers should inform their employees of their intent to monitor employees’ electronic activities. They should also respect any promises they make that they will not monitor such activities.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

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