Law Changing on Employer’s Right to Monitor Employee Email?

Not long ago, labor and employment lawyers representing employers felt comfortable advising clients that the law was weighted in an employer’s favor when it comes to the subject of monitoring an employee’s email at work. An employer should have a written policy advising employees that monitoring will occur, thus eliminating employees’ expectation of privacy. The Wall Street Journal says it’s not quite that simple any more.

Because of national concern about Internet privacy and because of a blurred line between personal email accounts and work email accounts, courts are more likely today to give employee privacy claims more consideration. The Journal notes several recent cases in which employees have prevailed on privacy claims involving email.

Many employees access personal email accounts from their work computers. That can create a problem because most monitoring captures all emails on a server that can be used to retrieve them, even those on an employee’s personal account accessed at work.

The key to navigating these murkier email waters is having an explicit written policy. So, an employer should spell out that if an employee accesses a personal email account on his work computer, the emails on the personal account will be captured by the employer’s server, become the property of the employer, and can be reviewed by the employer.

Employers have legitimate concerns about employee productivity, which can be impaired by too many personal emails. Employers have legitimate concerns about protecting confidential information and preventing viruses when employees send business documents to their personal computers and then send them back to their company computers.

When it comes to email monitoring, employers must keep up with the state of the law on the subject and modify their written policies accordingly. Time for a policy review and maybe a change or two?