Computers and electronic devices provided by an employer to an employee are just that, work devices. That means that you, as the employer, can read emails and see what websites your employees are accessing while they are supposed to be working. The real question is should you, as an employer, be reading your employees emails?
Reasons to Read Employee Emails
Employers generally need a good, business-related, reason to review employee emails. Good reasons to review and monitor employee emails include:
- Minimizing Security Threats to Your Business. Unfortunately, phishing attacks and hacking have become commonplace. An employee clicking on a link in an email could make your entire company vulnerable to a phishing or hacking attack. Not only could that be very costly to your businesses, but it can also harm your company’s reputation. Monitoring your employees emails may alert you to hacking or phishing before, or shortly after, it occurs, thereby minimizing or eliminating the damage done to your business.
- Minimizing the Risk of Disclosure of Company Secrets. Most businesses have information that they do not want made public, from business models to customer lists to trade secrets. Reading employee emails, or at least making employees aware that you might be reading their emails, could help to ensure that your employees are not sharing your confidential or proprietary information.
- Handling Workplace Issues. In the event that there is an employee dispute or allegations made against an employee, you will likely need to review emails to substantiate any claims. For example, if an employee is accused of sexual harassment, you have a duty to investigate. During the course of the investigation you will need to read employee emails.
- Lawsuit. If your business is involved in a lawsuit, it will be necessary to read employee emails.
While legally you may have a right to read employee emails, you should inform your employees that you can, or will be, reading their emails. It is extremely important that you have a comprehensive written policy in your employee handbook. At the very least, the following concepts should be considered and included in a policy:
- Anything accessed on the employers electronic devices is public and may be accessed by the employer,
- Employees are expected to be working while at work and not sending or checking their personal emails,
- Employees should not be sending personal emails using their work email address,
- Company devices and networks are just that, company owned and therefore subject to monitoring and review of all emails, personal and work-related, by the employer,
- With respect to work-related emails, there are a number of situations where you, as the employer, may need to access the employees work-related emails. It would be a good idea to decide if you want to regularly monitor work-emails or do so only when there is a good reason to do so. Employees should be given examples of what circumstances might lead to their emails being reviewed,
- An acknowledgement that the employee has read the policy and that their use of the company’s equipment is thereby consent to monitoring, and
- A statement about the ramifications for violating the policy.
The Electronic Communications Privacy Act (ECPA) allows employers to read employee emails. The Courts have routinely found that employees do not have an expectation of privacy in the workplace when it comes to employers monitoring and reading employee emails that are sent on a company computer and/or using a company network.
State law is still largely evolving with respect to reading employee emails. However, it is legal in every state for employers to monitor and read employee emails, as long as there is a valid business reason to do so. Some valid reasons are listed above. The following states do have some caveats:
Connecticut and Delaware require that employers tell employees in advance that the employer is monitoring employee emails. To-date, they are the only two states with this requirement.
Colorado and Tennessee require that employers have email monitoring policies.
Some state courts have held that employees who access a private email account, which is password protected, may have a reasonable expectation of privacy in limited circumstances. For example, an employee used her employer’s computer to email with her attorney. She did not use her work email address but rather a private, password protected, email account. The employer read the emails. The New Jersey Supreme Court determined that using a company computer for these conversations did not violate the attorney-client privilege and that her employer’s accessing of those emails was in violation of the law. Steingart v. Loving Care Agency Inc., 990 A.2d 650 (2010).
Should You Call a Lawyer?
More and more people are using company computers and networks to conduct both company and personal business. The law is still evolving as we head further into the digital age. A lawyer can advise you on the ever changing, and specific laws of your state, and help you draft a comprehensive policy advising your employees that they are being monitored. This could help to avoid a potential lawsuit in the future.
This article is intended to convey generally useful information only and does not constitute legal advice. Any opinions expressed are solely those of the author, not LawChamps.
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