Employees And Their Email

Most employers think nothing of checking their employees’ emails to determine if they are using email for business or personal use or whether anyone is using email for unlawful purposes — such as harassment — which could subject the employer to a lawsuit by employees. In fact, last summer, Dow Chemical fired dozens of employees after discovering that their emails contained highly offensive material. Even The New York Times terminated over 20 employees for using email inappropriately. However, employers cannot view employee email with impunity. The Electronic Communications Privacy Act of 1986 (the “ECPA”) specifically addressed when an employer may intentionally intercept, access or use email sent to an employee. One of the difficulties employers have in avoiding violations of the ECPA is that, as with mail sent through the postal systems, employees tend to possess a “reasonable expectation” of privacy as to all written mail — including those sent by email. This reasonable expectation of privacy may pose risks to those companies that do not have an effective written policy regarding use of emails. Therefore, employers should avail themselves of one of the exceptions under the ECPA which allows employers to intercept, access and use email written and received by employees. The most useful exception for employers under the ECPA allows them to intercept email where they have obtained the employee’s consent. Consent can be obtained in one of two ways: First, employers can require employees to sign a separate policy statement regarding the use of the email system. Or, second, employers can add an email policy to its current employee handbook and should circulate copies of the new policy to all employees at that time. Employers should obtain written acknowledgment from their employees signifying receipt of the policy. In either case, the policy statement should specifically state whether emails may be used for business purposes only or whether personal use is also permitted. While on a practical level, it would seem virtually impossible to prohibit email use for personal purposes, most policy statements should prohibit such use and should also provide that emails may not contain unlawful, offensive or discriminatory material. Additionally, employers should warn employees that their emails and other electronic communications may be monitored. Furthermore, employees should be informed that the use of passwords does not provide privacy protection for an employee’s email. Lastly, the policy statement should state what consequences arise from violation of the employer’s email policy, such as disciplinary action up to and including termination. We hope this article has been helpful. if you wish to discuss any of the above information or would like assistance in implementing an effective email policy, please feel free to contact Howard K. Kurman, Esq. Mr. Kurman is a labor and employment law attorney for companies of all sizes in various industries. The foregoing information is for general information purposes only and is not intended to constitute legal advice and is not provided in the course of an attorney-client relationship.