The short answer in most cases is—yes you can! Advances in technology and abuse by employees have raised numerous concerns for employers regarding the online activity of employees while at work or using company equipment. As an employer, you have an interest in ensuring that employees are on-task, and not engaged in inappropriate activity, which may be distracting them and lessening their productivity. In most cases, courts have taken the position that employers have the right to monitor what employees do on the employer’s computer systems and equipment. Employers will generally be held to violate an employee’s privacy only when engaging in particularly outrageous behavior such as stealing an employee’s personal email password, or hacking into their Facebook account.
The courts have remained clear that employees do not have an expectation of privacy in their work email accounts, as the account is thought to be the property of the employer. Further, employees do not have an expectation of privacy in particular messages sent or received through their work email accounts, even if the subject matter is private.
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Emails sent through personal accounts on company computers may also generally be monitored by employers in most cases. This is mainly because when employees send emails from work, company servers may not know whether the email is coming from a personal or company account and monitor everything on the company system. Cases involving private emails written on company time and using company equipment show that email monitoring is permitted where the employer’s workplace policies reserve the right to do so. Courts often reason that employees impliedly consent to their employers’ workplace policies by agreeing to work for the employer and by using the employer’s equipment while at work.
Here are a few methods and best practice tips for a fair and effective approach to electronic monitoring, which may also further insulate your business from legal action:
- First, set written policies that spell out how monitoring will be done, how data will be stored or destroyed, and rules for acceptable use of email. Make sure that employees sign an acknowledgment that they have read, understand, and agree to such policies.
- Second, inform your workforce by explaining the risks to the business from improper use of technological assets, the company’s email monitoring policy, the limits on employee privacy in the workplace, and the fact that monitoring will occur. Such information encourages employees to limit private communications to home computers or personal smartphones.
- Third, use technology tools. There are many products that can alert you to potential problems while reducing the potential for office friction, collection of sensitive personal information, and the amount of time you spend on the task.
- Fourth, only engage in focused surveillance of an employee’s email activity if a well-founded suspicion of company policy or legal violation exists.
Following these tips when conducting email monitoring will help ensure that your business maintains happy and healthy relationships with your employees, and, at the same time, help protect your business interests.
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 firm, specializing in business law, M&A advisory and executive talent solutions for entrepreneurs and executives of start-up and middle-market enterprises. Contact us today to discuss how we can help you secure your next competitive advantage. We are also home to CoverMySix®, our unique, anti-litigation audit service for 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.
