Do you know who’s reading your e-mail?

Employers have right to monitor ‘private’ notes

The e-mail message flashed across the computer screen: "I want to kill the back-stabbing bastard," the Pillsbury Company employee wrote about his boss.

Without the employee’s knowledge, his e-mail was being monitored; when his boss read the message, the employee was fired.

This real-life drama played out its final scene in January in the Eastern District Court of Pennsylvania, in the case of Smyth v. The Pillsbury Co.

The employee sued his employer under state law, alleging his right of privacy had been violated. He also claimed he had been promised his e-mail would be confidential.

His employer won the case. "There have been several similar cases in federal court, too, and the employers have always won," says Jeffrey A. Van Doren, JD, director of the Pittsburgh law firm Cohen & Grigsby. "A common law right to privacy is known to exist — a right to privacy in your personal effects. But for the privacy right to be violated, you have to show you have reasonable expectations that the stuff was written in private. The courts have generally found that that expectation is not reasonable."

Just because you can . . .

Van Doren acknowledges that the simple fact that employers can read an employee’s e-mail doesn’t mean they should. "However, there are some very good reasons for employers to monitor [e-mail]," he asserts. "They may want to make sure nothing confidential is being sent to competitors; that no one’s sending abusive or sexually harassing messages; or that an individual is not running a competitive business on company time and stealing clients."

Despite these and other legitimate concerns, employers should be careful about how they design and implement an e-mail monitoring policy. Maintaining morale while announcing such a policy will both maximize productivity and minimize legal risks.

No surprises

Just as patients are more likely to sue physicians for malpractice if they don’t like or trust them, employees are more likely to sue employers for breach of privacy if there is a poor relationship to begin with, says Van Doren.

"It’s a very delicate balancing act," adds Michael R. Losey, SPHR, president and CEO of the Society for Human Resource Manage-ment (SHRM) in Alexandria, VA. "SHRM believes that clear policies on all workplace privacy issues and usage of e-mail and other information technologies are important."

Van Doren says there are several steps you can take to keep potential morale and legal problems to a minimum:

• Involve employees in drafting the policy.

Management information systems and human resources personnel should be included, as well as one or two users — people the employer knows and who will understand that the policy will provide important protection for the company. "Employee input will go a long way toward helping morale," Van Doren advises.

Make e-mail policy crystal clear

• Tell employees about the policy before you implement it.

"If you tell them upfront you’re going to do it, they are far less likely to object to it," says Van Doren.

• Use "splash screens" when employees first log on to the e-mail system.

A "splash screen" is a message that flashes when the employee types in his e-mail password, which says something like: "Welcome to the XYZ company e-mail system. This is a private system solely for business use. We reserve the right to review all messages." This provides employees with a visual reminder of the policy when they log on each day.

• Take steps to make sure you can defeat any legal claim.

Employees can have no reasonable expectations that their e-mail is private if you tell them, straight out: "We may read your e-mail: It’s not private."

"It’s as simple as developing a clear policy," says Van Doren. "Employers own the e-mail system, the software, the computer. Simply state that this is a business-related computer system, and we reserve the right to review it. If employees don’t want something known, then don’t send by e-mail."

Once the policy has been finalized, pass it out to existing employees, and have them sign a form to acknowledge receipt, says Van Doren. (See the sample e-mail policy and acknowledgment form SHRM provides to its members, p. 21.) "For new employees, you should certainly make it part of orientation."

Other areas not so clear

When you get into other areas of communication, it’s not so clear whether employers have the right to monitor employee messages, says Van Doren. "Voice mail gets into a whole different area, involving federal and state wiretapping laws," he explains.

On the other hand, U.S. mail is completely private. "If mail is coming from outside the company via U.S. mail, addressed to the employee, the employer generally doesn’t have a right to monitor it," says Van Doren.

But of all areas of communication, Losey notes, it is e-mail that most concerns employers today. "Privacy policies are equally as important for paper-based information as they are for digital information," he says. "But it appears that e-mail provides the impetus for many employers to get a grip on privacy issues."

[Editor’s Note: For more information on e-mail monitoring policy and privacy issues, contact: Jeffrey A. Van Doren, director, Cohen & Grigsby, Suite 2900, CNG Tower, 625 Liberty Ave., Pittsburgh, PA 15222. Telephone: (412) 394-4900.]