An employee should never assume that their emails that are sent and received are kept in complete privacy from their employers. Under the Electronic Communications Privacy Act (ECPA) it provides for implied authorization to review employee emails, and that a company should state their policy of monitoring e-mails in the company handbook. However, pursuant to Title III of the ECPA, it unlawful for anyone to intentionally intercept any email communication while it is en route. ECPA 18 USC 2701.Since new technologies are ever growing, employers now have the options to monitor their employees when they use their phone, computer terminals, emails, voicemails and even when an employee is using the internet. Unless the employee’s company policy states otherwise, an employer may listen, watch and read most of the communications conducted by an employee during the course of their work day.
Recent surveys have shown that a majority of employers monitor their employee’s activity. More specifically, in a 2005 survey conducted by the American Management Association, it was found that three fourths of employers monitor the websites their employee’s visit in order to prevent inappropriate surfing. The survey further fold that 65% of employers use software to block connections to websites deemed off limits to employees. One third of employers monitor their employee’s number of key strokes and the amount of time spent on the keyboard and lastly just over half of the employers surveyed review and retain email messages. www.amanet.org/research/pdfs/EMS_summary05.pdf.
Most of the time, E-mail is not considered private if the email system is used at a company, the employer owns it and is allowed to review its contents. As such, an employee generally do not have a reasonable expectation of privacy in their email communications. Email messages that are sent within the company, as well as those that are sent from the employee’s terminal to another company, or from another company to the employee are subject to monitoring. These email messages include those from yahoo, hotmail, AOL, as well as instant messages. If an email is deleted out of the employees account, that doesn’t mean that they are totally deleted. The messages are retained in memory even after they have been deleted. Emails are often permanently backed up along with other important data from the computer system. If the employer’s email system has an option for the employee to mark their email messages as private in most cases this doesn’t always protect the emails and ensure that they are actually kept private. If an employer’s email policy specifically states that messages marked as “private" will be keep confidential, however there may also be some exceptions to that policy.
In order for an employee to know their employer’s email policy, they should read over the employee handbook. If the handbook doesn’t address the issue of email monitoring, an employee should speak with their employer about their policy for emails and privacy. Currently there are very few laws that address workplace privacy; however there are some organizations that are working to advocate for employees so that there will be a stronger government regulation of employee monitoring activities. Some of these organizations include; National Work Rights Institute, Workplace Fairness, Workplace Fairness is affiliated with the National Employment Lawyers Association
The forgoing article on employee rights was written by Ashley Grudon for the Law Office of
Goldstein and Clegg, LLC
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