Electronic Communication and Privacy in the Workplace

The framers of the Constitution devised the Fourth Amendment to protect citizens from invasions into their private lives. However, this amendment is not as clear when applied to the workplace, particularly with frequently changing and emerging forms of communication. There is much debate over how much privacy employees should have in the workplace with regard to their electronic communications, as regulations tend to lag behind technology.

Employee privacy rights can be unclear in the workplace. Employers need to be aware of the legal ramifications associated with monitoring employees’ electronic communications.

More and more companies are monitoring their employees’ email and Internet usage or phone conversations. The legal struggles regarding this type of electronic surveillance are then resolved by examining what type of communication was surveyed, whether a reasonable person would expect the correspondence to be private and what the employer’s rationale was for eavesdropping in the first place. There are legal ramifications and statutes in place to protect employees from electronic surveillance while at work with regard to the various communication mediums.

Telephone Usage

The Electronics Communication Privacy Act (ECPA) establishes limitations to an employer’s right to monitor telephone conversations. Under this act, employers are not allowed to listen or record personal phone calls, even if they are made on company property except in case of the following: the employee has knowledge of the surveillance and has given his or her consent; the communication is intercepted during the course of business; the interception is required to perform a communication service; or to protect the property rights of the employer providing the communication.

Voicemail usage is also applicable under this law. Generally, if you do not lead employees to believe that voicemail is private (allowing them to use a secret password to retrieve messages), then employees should assume that voicemails are for company use.

Emails

Employer-provided email systems are incredibly valuable resources for the company and its staff. Email is extremely efficient both for intra-company usage and with clients and business contacts, and is inexpensive to provide, easy to use and requires low maintenance. In spite of these benefits, there are also many dangers concerning employee privacy and the employer’s best interest.

There are several reasons why employers should consider monitoring email usage:

  • To maintain a professional reputation outside and within the company
  • To ensure employee productivity
  • To prevent, detect and eliminate harassment, either sexual or illegal
  • To prevent the risk of defamation
  • To prevent the disclosure of trade secrets and other information that is considered confidential
  • To avoid copyright infringement in the event that an employee would download illegal software

Despite these compelling reasons for why employers should monitor email usage, there are some protections available for employees. Though it is not explicitly stated, the protections under the ECPA also extend to emails as well as phone usage with three exceptions. The first is the provider exception. Since the employer is providing an email service and the service is company-owned, technically all of the correspondence on that service is company property.

The second exception concerns the ordinary course of business by which employee email correspondences occur. To determine if the law is applicable in a privacy case, the employer must prove that the communication related to a business practice and that it was being monitored for a legitimate business reason.

The final exception concerns obtaining consent. If an employer alerts employees that their email will be monitored, then the employee email is exempt from the protections under the ECPA.

Internet Usage

The Internet poses many dangers for employers when employees have the right to view websites, which may contain explicit material or engage in criminal activity such as gambling. The use of company-owned computers for personal use also weighs heavy on computer resources, as significant storage space and bandwidth may be wasted on downloaded games, pictures and other non-work-related materials. The Internet also threatens the livelihood of a business if confidential information is sent or intercepted by competitors with an interest in knowing company secrets.

Employers are within their legal rights to monitor the Internet usage of their employees. In fact, many companies install devices that block access to certain websites or restrict the amount of time that employees can visit non-work-related sites. Furthermore, there is also software available that tracks employee Internet usage so that employers can determine how much procrastination employees are doing while on company time. These products are wise investments not only because they offer the ability to monitor employees who are not doing their work, but because they also filter and block information so the employer is not liable should the employee engage in illegal activity while on the Internet.

Employer Recommendations

The most effective solution in preventing potential legal claims with regard to electronic communication monitoring is to establish and communicate a clear policy for your employees. Consider including the following information in your policy:

  • Outline how you will investigate misconduct while also explaining how employees will receive limited privacy.
  • Explain to employees that the electronic communications are owned by the company and how that relates to their usage.
  • Explain to employees that communication surveillance is not intended to invade their privacy, but instead monitor business practices. Without this information, many will assume that their communications (email, phone conversations, Internet usage and voicemails) are private.
  • Notify employees which forms of communication are monitored and how. For instance, you may choose to monitor your employee’s voicemail box. Explain that deleted messages are not truly gone because you have obtained a copy of the message as well.
  • Establish a no-tolerance clause for offensive material in email text, images and viewing explicit websites. Outline a punishment for dealing with employees who view or create elicit material.
  • Ask that employees read and sign the policy to confirm their understanding.
  • Update your policy as new communication methods or technology emerge, including social media, cell phones, etc. Always communicate policy updates to employees and require that they sign the updated policy to acknowledge that they understand the changes.

DISCLOSURE

The information provided herein is intended solely for the use of our clients. You may not display, reproduce, copy, modify, license, sell or disseminate in any manner any information included herein, without the express permission of the Publisher or Publishers of articles within.

The information provided is for informational purposes only and does not constitute legal advice. The information above contains only a summary of the applicable legal provisions and does not purport to cover every aspect of any particular law, regulation or requirement. Depending on the specific facts of any situation, there may be additional or different requirements. This is to be used only as a guide and not as a definitive description of your compliance obligations.