Employee E-Mail Privacy Rights

Whether you are an employer or an employee, it is important for you to know what the extent of your rights and limitations are regarding messages that are sent on employer – furnished computers.  There is an inevitable clash between employees’ right to privacy and employer’s right to access of any e-mail or other electronic messages sent on company computers.

For employers it is vital to announce a firm policy which is clearly stated to all employees so that the line between private and company messages is clear and to what extent, if any, private messages are to be permitted.

In City of Ontario (CA) v. Quon, the Police Department issued to its personnel pagers which were billed based on the number of characters to be sent each month.  The Department routinely checked the messages its officers on duty were sending and found that several of them were personal, often sexually explicit.  An officer who was disciplined challenged the action, and the US Supreme Court upheld the Department’s action on a couple of grounds.  First, it held that the Department had a legitimate concern about the costs related to personal messages.  Second, and most important the Department had published clear instructions to the employees regarding personal messages, so that it should not have come as a surprise that the Department was reviewing all messages.  In its policy statement to employees, the Department clearly stated that employees should have no expectations of privacy in sending such messages.

There was a different outcome in Stengart v. Loving Care Agency, where the New Jersey Supreme Court ruled in favor of an employee who had created a password-protected e-mail account on the employer’s computer and had a series of personal correspondence with her attorney.  Although the company had declared a policy which would permit it to review any messages sent on its electronic systems, it also permitted in the policy statement “occasional personal use” of e-mails.  It became a question of whether the employee’s use of the e-mails was reasonable, and the employee’s right to privacy prevailed.

Employers’ policy statements in this regard should:

  • specify which devices are included (such as company-issued computers, BlackBerrys, and cell phones);
  • state as clearly as possible what limitations there are regarding personal messages;
  • make clear that the employer retains the right to monitor and log all messages;
  • make clear that the employer retains the right to access any such messages and that the employee should not expect privacy in this regard;
  • set forth the disciplinary action that will be taken if the policy is violated; and
  • require every employee to sign a document which contains the policy statement and acknowledges receipt of it.

Explicit understandings, preferably in writing, are what allow parties to any negotiation/agreement to avoid litigation.  (A Hollywood mogul once said:  “Oral agreements aren’t worth the paper they’re written on!”)  If you are an employee, you owe it to yourself to read such policy with care and not to push its limits.  A violation of company policy could prove embarrassing (at best) or termination of your employment (at worst).

Employers must, however, be aware of policies of the National Labor Relations Board (NLRB), affecting union and non-union employees.  An employer may not prohibit a disgruntled employee from disparaging the employer’s policies regarding wages, terms, and conditions of employment.  So, the NLRB ruled an employee could not be fired for posting Facebook comments on a company computer and agreeing with the negative comments of a former employee who had posted complaints about her supervisor.  In creating a policy, an employer should be explicit in the restrictions imposed, but must also be aware of the limitations.

– Ken Butera

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