Employers, avoid email legal problems!
Email can cause employers a litany of concerns. This article deals primarily with the legal problems surrounding email.
Computers have opened the door to a host of problems and liabilities for employers.
Just how, to what extent, and possible countermeasures came under discussion at an education session conducted by John Thiel at a September 2000 International Public Works Congress and Exposition sponsored by the American Public Works Association.
Questions an Employer Needs to Ask
The resources of a computer and the networks to which it provides access make up a myriad of challenges in the workplace, Thiel said. A manager needs answers arising from an employee’s use of the computer for email for personal reasons during work time; to defame another employee or customer through electronic mail; and to transmit confidential and sensitive information concerning the company.
Monitoring Email: Is It Legal?
An employer may want to monitor employees’ email for business-related reasons. For instance, if an employee must be absent for an extended period, the employer may want to monitor that employee’s email to make certain no important messages go unanswered. Also, an employer may want to ensure that the system is being used in an appropriate manner and that no inappropriate or illegal conduct is occurring.
A legal issue that surfaces is whether or not such monitoring is an invasion of privacy. According to Thiel, the courts recognize the existence of a right to privacy that is broad enough to cover certain conduct occurring in the work place. “The issue of invasion of privacy has arisen regarding employer searches of employee desks, lockers, and personal belongings,” Thiel said. Thiel explained: The issue in all of these cases, invariably, boils down to whether the employee had a reasonable expectation of privacy. For example, employees that get a key to their assigned desk and are allowed to lock that desk every night may reasonably conclude that personal items locked in the desk would remain private. If an employer, unbeknownst to the employee, used a master key to unlock the desk and search its contents, the employee conceivably could bring merited action for invasion of privacy.
Expectation of privacy
The same measures apply to an employer’s accessing or monitoring an employee’s email.
Court decisions, however, have tended to favor employer privilege-finding that an employee does not have a reasonable expectation of email communications privacy. Courts have reasoned that once an employee disseminates an email communication to others, the employee cannot expect that the communication will remain private.
Despite this trend, Thiel points out situations where an employee could reasonably argue the abrogation of privacy. They include the employee’s having a personal password to access software and email.
Employers should realize that giving an employee a password may create an expectation of privacy similar to one created by giving employees an individual key to lock their own desks, said Thiel.
Removing Privacy as an Issue
The simplest way to make certain an employee does not develop an expectation of privacy, according to Thiel, is to inform employees that the company has a written policy of maintaining its right to access and monitor stored email messages.
Within the written policy there should be a provision where the employee gives signoff consent to the employer’s accessing and monitoring. Thiel emphasized the importance of informing the employee of a written policy and the equal importance that the employee sign and return the consent form to the employer.
The issuing of a policy also protects the employer from an employee’s claiming violation of the Fourth Amendment regarding search and seizure.
Regardless of this policy, however, Thiel warned that the employer has the obligation not to disseminate the contents of messages.
Email as Evidence
Employers, said Thiel, should be aware that email transmissions, the same as written interoffice memoranda, can be used as evidence in cases of harassment or discrimination. Email is a less formal type of communication, and employers should be wary of dropping their guard against informal communication that might border on harassment or discrimination. Thiel said, “If it is not appropriate for a written memo, it is not appropriate for email.”
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