Wednesday, September 15, 2010

Do You Have a Right to Monitor Your Employees' Electronic Messages?

E-mail and text messaging is a way of life in the modern business world. Use of various forms of electronic communication by employees has risen dramatically, with no end in sight. It seems every worker has an employer-provided Blackberry, Droid or iPhone device.

But what rights do you as an employer have for monitoring or reviewing your employees’ messages?

In its recent decision in City of Ontario v. Quon, the U.S. Supreme Court held that a police officer did not have a right to privacy regarding personal text messages sent and received via a city-owned two-way alphanumeric pager. The City of Ontario’s policies and procedures specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources” and the employee signed a statement acknowledging that he had read and understood the Policy.

However, the New Jersey Supreme Court held in Stengart v. Loving Care Agency Inc. that an employee who sent and received e-mail messages on an employer-issued laptop computer had a reasonable expectation of privacy in her private, password-protected internet e-mail account, and the act of sending and receiving e-mails to her attorney via a company laptop did not eliminate the attorney-client privilege that protected them. This was despite the employer’s policy that allowed the company to review any messages sent on its electronic systems, but allowing "occasional personal use" of e-mail.

How do you as an employer act to protect your business and monitor your employees’ electronic communications to ensure they are not harmful to your business?

As in many employment issues, the first line of defense is to have a clearly worded policy related to the use of employer-issued electronic devices and computers. That policy should include, at the minimum, (1) specific definitions of the work devices and messages that are covered by the policy; (2) a provision regarding personal use of the devices; (3) a provision informing employees that the employer may monitor and log all work devices and accounts; (4) a waiver of any expectation of confidentiality or privacy in messages sent over those devices; and (5) clearly stated consequences for violation of the policies.

These policies should be provided to all employees and a signed acknowledgement obtained from each employee.

Furthermore, any search must be motivated by a legitimate, work-related purpose and no unfocused “fishing expeditions” for undefined information should be allowed. The law is still developing in this area and caution is the best policy.

Any questions regarding the scope of any investigation or monitoring should discussed with legal counsel prior to any action. The combination of clearly defined policies and procedures, and competent representation, should minimize the employer's exposure to costly litigation.

Lee Keller King
Senior Associate at The Vethan Law Firm