Email Surveillance at Work

Email has revolutionized the way most of us work. It allows us to communicate quickly, transmit documents in an instant, work offsite, work in teams located in different cities, and document negotiations and decisions, all at warp speed. Unfortunately, the speed and informality of email also makes it a fertile medium for workplace harassment, trade secret theft, and other inappropriate communication.

In response to these problems, many employers monitor employee email -- and courts have generally upheld their right to do so.

Why Employers Monitor

According to a survey conducted by the American Management Association, more than half of the  responding companies monitor employee email -- and one quarter of them had fired an employee for misusing email. Are these numbers justified? Consider these statistics:

  • A  2005 poll revealed that almost half of the employees surveyed had sent or received email messages that included jokes, stories, or pictures that were "questionable" (meaning they included sexual content or were politically incorrect).
  • Six percent of employees have emailed confidential company information to someone they shouldn't have.
  • Fifteen percent of companies have faced a lawsuit triggered by employee email, and almost one quarter of companies have had their email subpoenaed by courts and regulators.

In some situations, employers have to read employee email. For example, if one employee accuses another of sending harassing or X-rated messages, the company has to review those messages to decide what to do. The company has a legal obligation to prevent and eliminate harassment; without reading the messages, the company won't be able to fulfill its duties.

How Employers Monitor

There are a variety of ways employers can monitor employee email messages. For example, an employer's email system might automatically copy every message sent or create backup copies of every message received. Some employers use software that scans email messages for keywords that might indicate misconduct. Some companies use "keylogger" software, which might even capture draft messages employees decide not to send.

How actively an employer monitors email will depend on its goals and resources. For example, some employers review employee email only if there's a good reason (such as a claim that the employee sent trade secrets to a competitor or used company email to send a racist joke). Some companies do a random "spot check" of email periodically. Others are more active, reading a larger percentage of messages.

Email Privacy?

Courts have generally found that employers have a right to monitor employee email messages, as long as they have a valid business justification for doing so. An employer that warns employees that their email is not private and can be read at any time will have a very solid legal defense to an employee's claim that monitoring violated the employee's privacy. Even an employer that doesn't take these steps generally has the right to read employee messages.

On the other hand, if a company took steps to assure employees that their email was private and would not be read, the employee might have a stronger case.  

Supreme Court Comes Down on the Side of Employers

In 2010, the U.S. Supreme Court weighed in on this  issue, finding that the City of Ontario (in California)  had the right to read private text messages an employee had sent and received on his city-issued pager.  In that case, the Court found that any expectation of privacy the employee may have had was outweighed by the fact that the city had a legitimate, work-related reason to read his messages (to figure out whether the city needed to change its contract to allow a higher character limit on the city's pagers) and the search was not excessive (the city looked at only two months' worth of messages, and only at messages that had been sent during work hours).

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