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Monitoring Employee Emails: An Invasion of Privacy?

From company credit cards to company cars, and company cell phones to company email accounts, employers these days provide it all to their employees, and while such perks are mostly appreciated, they can come with their pitfalls, such as their subjectivity to employer monitoring. When an employer provides an employee with a credit card, cell phone, car, email account, or any other type of benefit, they want to be sure that those benefits are not being taken advantage of. That means that the employer will review the credit card statements for suspect charges; they will review the cell phone records for significant usage; and chances are, they will review employee emails. But is doing so an invasion of privacy?

Employers have an interest in what their employees send via email mostly for the sake of avoiding legal conflict, but before they begin monitoring, they want to know: will reading employee emails result in a lawsuit—the very thing they are trying to avoid by monitoring emails in the first place?

Email is Public Domain 

Most courts will side with an employer regarding email privacy, as an email is essentially an electronic document that can be used as evidence when an employer is sued. Furthermore, when an email is sent at work, it is done so via a shared network on a shared device. With those points in mind, courts do not see a major issue with employer email monitoring, so long as it is done expressly for business purposes.

According to a 2009 study conducted by the American Management Association (AMA) and the ePolicy Institute, 80% of businesses have written policies in place that govern the use and content of email. Even so, 24% of organizations report that a court or regulatory body has subpoenaed an employee email, while an additional 9% claim that they have been involved in a lawsuit that was triggered by an employee email. Additionally, 6% of employees admit to using email to transmit confidential customer information (credit card and social security numbers included) to non-related third parties, while another 6% admit to transmitting confidential health information to non-related third parties via email—a criminal offense in all states.

Because a majority of companies take great pains to inform their employees that their emails are not private, and because of the costly risks associated with improper emails, most courts that have been compelled to consider the issue have decided in favor of the employer.

Consequences of Reading Employee Emails Without a Written Email Policy in Place

Even if your company does not have a written email policy in place, the courts will generally rule in your favor should you feel the need to review employee emails, as the employee is using the company’s system, and the company’s network, on the company’s dime. However, if your company enables password protected emails, or allows an employee to label an email “confidential” or “private,” then you may be on shaky legal territory. Again, it all boils down to cause though, namely: Do you have a valid reason for reading an employee’s emails?

Is it Illegal to Monitor Work Email in California?

Unfortunately, California law is extremely unclear regarding the privacy of work emails. While the federal Electronic Communications Privacy Act of 1986 (ECPA) prohibits the “unauthorized access to electronic communications,” the term “unauthorized” often throws employers and employees alike for a loop. If an employee communicates via email from their work computer and with a company account – both of which the company owns, and which the company has access to – does that give them authorization to read the employee’s emails? Again, most courts will say that yes, the employer was authorized to snoop through the employee’s emails.

However, if an employee were to access their personal email from a work computer, then sign out of it, and the employer were to log back in with the sole intention of snooping, the employer may have less legal footing than if the email account was a company account, as the personal email account is not company property.

Protect Your Rights Before You Snoop

If you intend to monitor employee emails, it is best to develop a strict email policy that expressly prohibits the use of email for any purposes except business communications, as well as clearly states that company emails, computers, and electronic devices will be monitored. In doing so, you effectively protect your company in the event that email monitoring should become necessary, as well as give all employees a fair chance to use their work email solely for what it was designed for: work.

Consult a Pleasanton Business Attorney

At Garcia & Gurney, ALC, our Pleasanton business lawyers work to help employers in the Pleasanton, Alameda, and Contra Costa areas reduce liability and protect their assets. Whether you want to take proactive measures and draft a written email policy for employees, or whether you need to protect yourself in the event that you read an employee’s emails without an email policy to back up your actions, our employment attorneys can provide the legal representation you need. To consult with a Pleasanton business attorney, contact our firm at 925-468-0400, or online today.

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