USA Employee Monitoring Laws: Are Employers Allowed to Monitor Employee Personal Emails & Messages?

Q: Are employers allowed to monitor employee personal emails & messages?
A: Employers have the right to monitor a company’s equipment, including monitoring messages and emails sent using this equipment.

US employers have the right to monitor their property. In other words, in the USA employers have the right to monitor computers, servers, and other electronic devices that belong to a company and are provided by the employer to employees to perform work-related activities. So, any email or message, sent using an employer’s property, might be monitored, regardless whether is it work-related or personal.

In general, the monitoring practice is widely applied and allowed in the US. As cited by Law360 ( New York, 2009), a 2007 survey conducted by the American Management Association suggests that 66 percent of companies monitor employees’ Internet connections, 45 percent of employers track employees’ keystrokes and time spent at the keyboard and 43 percent of companies monitor employees’ e-mail.

However, every state has its local regulations as to the issue of employee monitoring legacy. For example, certain states require that employers provide notice to their employees before doing so, and several states have pending legislation that would require prior notice.

Specifically, Connecticut and Delaware currently have laws requiring employers to provide notice before conducting electronic monitoring, and New York, Massachusetts, and Pennsylvania all have legislation pending that would require notice before conducting electronic monitoring. ( Connecticut General Statute § 31-48d; The Delaware Statute  § 705; The Massachusetts Bill § 3(a)-(b); The Pennsylvania’s Statute  § 2(b); A. 3871, 2009-2010, Reg. Sess. N.Y. 2009)

The law provides exceptions: where an employer suspects an employee of engaging in misconduct. If an employer has “reasonable grounds” to believe that employees are engaged in conduct which (1) violates the law; (2) violates the legal rights of the employer or other employees, or; (3) creates a hostile workplace environment; and electronic monitoring “may produce evidence of this misconduct,” the employer may conduct monitoring without giving prior written notice. Id. at § 31-48d(b).

The workplace privacy regulations (or the core principles of legal employee monitoring) include using employers’ equipment for monitoring, communicating monitoring intentions to employees, and applying software for business purposes by employees. According to the Precedent Law, all these are deemed to be relevant to the limited expectation of privacy by employees. E.g. If an email system is used as a corporate’s one, the employer is allowed to review its contents, including personal mail.

Privacy Rights Clearinghouse, a non-profit corporation located in California, states that: “Messages sent within the company as well as those that are sent from the company’s terminal to another company or from another company to an employee’s device can be subject to monitoring by the employer. This may include web-based email accounts such as Gmail and Yahoo as well as instant messages.”

Q: How are employees protected?
A: There are laws protecting employees privacy.

Various state and federal laws prohibit unauthorized access to electronic communications and invasion of privacy. Unauthorized access means non-communicated monitoring practice, and privacy invasion implies unreasonable surveillance of employees.  Again, the law varies depending on the state.

The Stored Communications Act (SCA) provides that “whoever intentionally accesses without authorization a facility through which an electronic communication service is provided . . . and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage . . . shall be punished as provided. . . ”, 18 U.S.C. § 2701(a).  However, the SCA permits access to a stored communication when consent is provided by the user. 18 U.S.C. § 2701(c)

In addition, a few states have enacted statutes specifically requiring employers to give notice when monitoring employees’ activities on electronic devices. Examples have been provided in the previous answer.

Q: How are employers protected?
A: There is legislation protecting employers.

According to the federal Electronic Communications Privacy Act (ECPA), an employer-provided computer system is the property of the employer. That is why, when monitoring employees, employers are protected by the law when corporate equipment and business-oriented software is used.

Moreover, when an employer suspects an employee of being engaged in misconduct and corporate policy breach, nor prior notice for the monitoring is required, as explained by Weil business law company. For example, employers in New York would be able to conduct electronic monitoring without giving prior written notice where they have reasonable grounds to believe that employees are engaged in misconduct and electronic monitoring may produce evidence of this misconduct.

As shown by the Precedent Law, it is difficult for an employee to argue successfully that he or she has had a reasonable expectation of privacy in e-mails at work if a corporate policy includes the monitoring practice. As with some of the statutes mentioned in the first answer, the notice would have to be in writing or in electronic format and acknowledged by the employee in a similar manner.

Q: What do professional lawyers suggest?
A: They suggest being reasonable when implementing the monitoring tool at the workplace.

Professional lawyers suggest, there are the core principles to follow when applying employee monitoring at the workplace.

1. Using employers’ equipment (computers or cell-phones)

The Precedent Law states that when employees apply an employer’s equipment, including any gadgets available, – their expectation of privacy should be limited.

2. Communicating and negotiating monitoring intentions

Negotiated monitoring is deemed to be legal. Employee computer monitoring intentions are usually communicated via corporate Policies in various ways: through employee handbooks, via memos or meetings, or union contracts.

3. Applying monitoring software for business purposes

Employee monitoring software must serve reasonable business goals. If no spyware functions are predetermined, then the software is considered to be a productivity or performance monitoring one.

Disclaimer

This article provides general information only. This information is for general understanding only and not to be used as legal advice. To receive professional legal advice, please consult your lawyer.

By WorkTime employee monitoring software www.worktime.com