EMPLOYMENT LAW BULLETIN

Vol. 01, No. 05

Courtesy of Eskridge Law, Attorneys at Law

Monitoring Employee's E-Mails: Can an employer get into trouble for monitoring its employees' e-mails? The short answer is: YES. The long answer is that it depends on various factors. The legal questions regarding whether and to what extent it is appropriate to audit and monitor company computer systems are not yet settled. The cases generally support an analysis of whether the employees had an "expectation of privacy." Most e-mail systems assign passwords, often chosen by the employee and unknown to the employer. These passwords may be argued to provide an "expectation of privacy" to employees, which could therefore cause problems for an employer who audits or monitors employee computer use. As an employer, it is important to make sure your employees do not have an "expectation or privacy," -- at least not a reasonable one.

The Electronic Communications Privacy Act of 1986 (ECPA): The ECPA grew out of the Federal Wiretap Statute. In 1994, the ECPA was revised specifically to include e-mail and other forms of electronic communications. The ECPA provides two exemptions for employers: the "consent" exemption and the "provider" exemption. The "consent" exemption applies when one or more of the parties has given consent. Employers with a written policy under which employees consent to employer monitoring and retrieval of e-mails may use this exemption. The "provider" exemption applies to employers who provide their own private e-mail system, and allows the "provider" to access stored communications. It is dangerous to rely on the "provider" exemption however, since the term "provider" is not defined in the statute. The better course is to make sure you have employee consent.

What Should You Do?

1. Develop a policy to address employee privacy expectations and acceptable computer use.
2. State your policy in a notice which employees see when they log on. The notice should state clearly that the computer system, including Internet access and e-mail use, are not private and may be monitored and/or audited. The policy should also state the parameters of acceptable employee use.
3. Have an employee handbook which also states your policies regarding employee use of computers and the fact that the computer system will be audited. (And, of course, make sure to have employees sign an acknowledgment of receipt of the manual.)

Get Help from an Experienced Attorney! Courts are becoming increasingly sophisticated in their understanding of electronic communications. It is essential to have an appropriate electronic communications protocol and system in place. If you have an employee handbook, have an attorney update it to include monitoring of employee e-mails and Internet access. If you do not have an employee handbook, retain an employment law attorney to prepare one for you.

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