A recent article from Tech2 boldly claimed “Privacy is dead: Stop whining and get some real work done.” That article addressed the state of the world at large; how big data is always on, and how most (if not all) of our online activity is parsed, sifted, logged and otherwise analyzed constantly. The idea of privacy has evolved along with technological innovation, as have the laws concerning the right to privacy in the workplace.
The short answer? When you need to, and be smart – adopt a policy.
The general consensus of court is that employers are free to read employee email as long as there is a valid business reason to do so. As an added form of protection, some companies opt to adopt a policy or require employees to sign a consent form that acknowledges that email isn’t private. The most relevant federal law regarding communications privacy is the Electronic Communications Privacy Act of 1986 (ECPA). HR Examiner explains how the ECPA affects when employers can monitor communications:
- Business Exception. There is a business exception that allows an employer to monitor employee use of its own systems for “legitimate business needs.” This includes improving customer service, preventing harassment and making sure that people are actually working.
- Consent to Monitoring. If one party to the communication consents to the monitoring, then monitoring is permitted even if the business exception does not apply. “Consent” requires the employer to give advance notice of its policy to monitor—it does not require the employees to agree. Consent is implied from the fact that they learned about the policy and decided to keep working there.
- Employer Owned Systems. The owner of the email, IM and phone message systems is also allowed to access the communications even if they are personal.
Consent forms and other policies and procedures can protect you from legal action and financial liability. While courts often side with employers when it comes to communications monitoring, exceptions have been made with dire financial consequences. Your employees’ communications affect your business; monitoring them is your right, if done appropriately.
Alex Gertsburg is a managing partner at Gertsburg Licata. He may be reached at (216) 573-6000 or at [email protected].
Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction. If you have specific questions about your matter, please contact an attorney licensed to practice in your jurisdiction.
