Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: July 20, 2016
The Firm
201-896-4100 info@sh-law.com
This question regarding whether employers reserve the right to search employee emails has become very controversial. It appears that Hillary Clinton is not the only one having her emails scrutinized. Since many workers do not have private email servers and rely on their employers’ electronic communication resources, it is fairly easy for employers to monitor workplace (and non-work) communications.According to a survey by the American Management Association (AMA), more than 50 percent of the responding businesses monitor employee email messages. In addition, 25 percent of the companies report that they have terminated an employee for misusing email.
Nonetheless, the legal principles that govern employers who monitor employee email accounts are complex and evolving. The legal construction of employer surveillance largely depends on the computer, email, or other relevant policies that have been adopted by the employer and communicated to the affected employees. However, in employment lawsuits involving email searches by companies without policies authorizing such searches, the courts have still largely sided with employers, particularly if they had a compelling business reason to read the email.
In City of Ontario v. Quon, the U.S. Supreme Court held that the City of Ontario (California) did not violate the Constitution when it audited the messages exchanged on pagers it provided to members its police SWAT team. In the unanimous decision, the Court held that the text message search did not violate the Fourth Amendment’s protections against unreasonable search and seizure because it was legitimately work-related.
“…the legal principles that govern employers who monitor employee email accounts are complex and evolving…”

To avoid liability, employee handbooks should make it clear that employees should have no expectation of privacy when it come to their work email accounts. For instance, the policies may expressly state that the systems are owned by the company and therefore can be accessed without notification or permission. These types of limitations are strengthened to the extent that the employer insists that its email system is used exclusively for business-related communications. It is recommended that employees are officially warned that “electronic files, e-mail, data files, images, software, and voice mail may be accessed at any time by management or other authorized personnel for any business purpose.”Even if the employers’ policies allow searches without notification, it is advised to keep employees apprised of such searches, provided it does not compromise the investigation. For instance, if conducting a sensitive sexual harassment investigation, the employer likely would not want the target employee to be given advance notification until the third party investigation has been completed. However, if management is investigating an email security breach or virus in the system, keeping all employees informed may actually help facilitate the process.
In any case, it is generally good practice to inform employees after the search has been conducted. This not only helps to maintain transparency and trust, but also reminds staff of the relevant policies regarding email monitoring.
This is an area of law that continues to evolve almost daily so it is very important to monitor all developments to insure that your policies align with current legal requirements.
If you have any questions regarding how to deal with your business’ email security or would like to discuss this matter further, please contact me, Gary Young.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Case law following the 2010 amendments to Federal Rule of Civil Procedure 26 offers guidance on how courts are likely to address whether an expert witness’s AI records are subject to discovery. Key Takeaways Rule 26 Expert Discovery After the 2010 Amendments This article addresses the question courts and lawyers have faced in recent cases: […]
Author: Chris Seelinger

“Show how 3M is 0% at fault.” The absurd tale of how a 350-page ChatGPT history for 3M’s expert witness was produced during a deposition is more likely than you think. It’s an inevitable trend, and an unsettled question for federal courts as experts make generative AI part of their workflow. Key Takeaways Expert Witness […]
Author: Chris Seelinger

Screenshots have changed the risks of electronic communications. The screenshot problem is that messages intended for one person or a small group can be copied, forwarded, preserved, and ultimately presented to opposing counsel, regulators, journalists, customers, or a jury. Businesses should recognize that a truly private digital conversation is increasingly unreliable and ensure their policies, […]
Author: Sean M. Pena

Developers, engineering, procurement, and construction (EPC) contractors, and equipment suppliers each play a critical role in completing a BESS project. However, when equipment costs rise, deliveries are delayed, or regulations change, determining who bears the financial consequences can become contentious. Well-drafted project agreements are essential to sound risk allocation. Key Takeaways This article is Part […]
Author: Nicholas Wall

IP infringement occurs when someone uses your intellectual property without your permission or beyond the scope of the permission you granted. Common examples of IP infringement include copying a product’s patented features or using a trademarked logo in a way that is likely to confuse consumers about the source or affiliation of goods or services. […]
Author: Michael Mietlicki

When facing public allegations of wrongdoing, companies should not let the speed of the public conversation dictate the speed of an investigation. An investigation designed to confirm a preferred narrative rather than establish the facts can create serious problems later, particularly if litigation, regulatory scrutiny, or employment claims follow. Key Takeaways When public allegations surface […]
Author: Sean M. Pena
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!