Business Department

A company's interest in preventing inappropriate behavior
or illegal activity via its e-mail system takes precedence over employee privacy

For many people, electronic mail (e-mail) is a private, one-on-one discussion that often replaces spoken conversations. While this immediacy is one of the most compelling features of e-mail, it can also cause significant issues in the workplace – specifically, privacy issues.

If you send e-mail at work, your boss can legally monitor those messages. In addition, if your company becomes involved in a lawsuit, the other party often has the legal right to review relevant e-mail.

Instituting an E-mail Policy
As the use of the Internet increases, more companies are requiring employees to sign and acknowledge employer e-mail or technology policies. This type of policy should be a part of any business organization.

An e-mail policy informs the employee that:

• E-mail is for business purposes only,
• Computer systems are the property of the employer,
• E-mail may be monitored, and
• Employees have no reasonable expectation of privacy in the use of e-mail.

This written statement, when signed by an employee, creates a contract upon which an employer can rely if they choose to monitor computer usage. If a dispute arises, the employer can use the signed statement to show that it was not reasonable for the employee to think that e-mail was private.

Pennsylvania case law upholds the employer's ability to monitor. In the 1996 case, Smyth v. Pillsbury, the court ruled that a company's interest in preventing inappropriate comments or illegal activity over its email system outweighs any privacy interest the employee may have.

Employer Concerns
Employers have several legitimate concerns about employee e-mail. Employers prefer to pay employees for legitimate work, not for sending personal messages. Companies invest in technology to increase efficiency and productivity, not to assist employees in pursuit of their personal ventures.

Most importantly, employers worry that e-mail might be used within the workplace to harass or offend other employees. Most monitoring software will flag messages with offensive language and identifies employees who send an excessive amount of e-mail. This software can also identify messages with pictures or those with something as specific as a resume.

Employers and employees should consider that an e-mail could come back to haunt them in court. Unlike spoken conversations, an e-mail can live indefinitely in a computer system. Unless a company has a specified long-term plan to purge old backups (and most do not), archived e-mail can be a productive avenue for information gathering. Similarly, in lawsuits alleging sexual harassment or discrimination, judges have permitted evidence of inflammatory e-mails with off-color jokes and sexist comments, as well as e-mail requests to human resources personnel on how to fire an employee.

By placing employees on notice that e-mail is not private, employers take an important step to avoid the creation of incriminating e-mails. Both the employer and the employee should know exactly what they are sending from work, and limit their correspondence to business-related items. A written policy offers one more level of protection in a world riddled with invasion of privacy lawsuits and wrongful termination cases.

MacElree Harvey
17 West Miner Street
Post Office Box 660
West Chester, PA 19381–0660
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