When Can Companies Search Employee Emails?

Is it within your rights to search employee emails?

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.

City of Ontario v. Quon

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.

What employers should do

“…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.