Monitoring employee emails – a slippery slope if not done correctly

As an employer, you are rightfully concerned about the amount of time your employees spend on personal emails. The inappropriate employee use of the company email system can create a host of problems for an employer.

Not only does the inappropriate use of email reduce employee productivity, but they can expose an employer to potential liability. Emails can be used against an employer in a lawsuit in the same way as any correspondence. In recent court cases, employee emails have been presented as evidence in claims of discrimination, sexual harassment, and other illegal activities.

Therefore, an employer may be tempted to monitor employee emails to ensure maximum work productivity and decrease its own legal liability. As a general matter, employers have the right to monitor employee email. The electronic mail systems at work are the employer's property. An employer also has the right to expect that such systems will be used for business purposes. However, this right to monitor emails is somewhat limited by an employee's right to a reasonable expectation of privacy. An employer that monitors employee emails may be liable for violating its employees' privacy if it does not have a sound email policy that gives notice of proper email usage.

A good email policy should give employees notice that the employer expects that the email system will only be used for business purposes. Furthermore, the policy should articulate whether personal emails are ever permitted. For example, an employer may chose to allow its employees to email during lunch breaks. The policy should also remind employees of unacceptable email practices, i.e. sending inappropriate and offensive messages. Most importantly, the employer should clearly state its intention and reserve the right to monitor employee emails.

If you have any questions about creating an acceptable email policy, or are unsure whether your company has a sound email policy, you should consult with a qualified employment attorney.

Comments

[Mark Reichenbach]

That was an interesting blog piece. I'm curious about the employers responsibility (post termination) to shut down the departed employees email account. If an employer does not delete a departed employees account, rather leaves it active and monitors incoming email sent to the departed employee, how long can that account be left "live" for and does the employer have a right to keep a terminated employees account open? The terminated employee was part of a Reduction in Force and not for cause.