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By this time, most companies are aware of their right to monitor employee email activity at work. But as these cases show, putting an email monitoring policy to work comes with some dangers.

Thanks to our affiliated website, ITManagerDaily, for the following rundown of recent court rulings:

The loophole

In one case, an employee sued the company for discrimination. After the suit was filed, the company looked through her work laptop to save all of her files.

The files included e-mails she sent via a personal, password-protected account. Copies of the messages had been automatically saved on the company’s network.

Some of the e-mails were conversations between the employee and her attorney, which contained evidence the company felt would help its case.

After the employer presented the messages in court, the employee claimed her rights to privacy and attorney-client privilege had been violated.

The company argued the employee had no such rights — its computer use policy stated that anything done on workplace computers could be monitored.

But the court disagreed. The judge ruled the employee had a “reasonable expectation of privacy,” because the policy didn’t mention that all e-mails — even those sent using a personal, password-protected account — would be saved to her hard drive (Cite: Stengart v. Loving Care Agency).

Personal email on personal laptop

In another case, a court ruled that the company was allowed to read personal email messages an employee had sent from his personal laptop.

An employee at a printing company was fired after he was caught doing work for a competing company owned by his wife while on his employer’s premises.

The employee frequently brought his own laptop to work to conduct business for the competitor. After catching wind of what was going on, his boss entered his office while he wasn’t there, and found an email concerning the brokering of jobs to the wife’s company on the laptop.

The supervisor printed the email and used it as evidence to terminate the employee. The employee then sued, claiming the company violated his right to privacy.

But the court sided with the company, saying it had a right to read those emails because they were sent using the company’s network, concerned a matter affecting the company, and were found as part of an investigation into a serious policy violation (Cite: Sitton v. Print Direction, Inc.).

Co-worker snooped 

What if an employee forgets to log out of a personal account and the email is read by a co-worker?

That was the issue tackled by yet another court case involving employees’ personal email. In that case, an employee remained logged in to her personal account after getting up from a shared computer, and her email was read by a co-worker.

She sued, but the court ruled against her. The judge said she could not expect the conversations to remain private after leaving her account open on a shared computer (Cite: Marcus v. Rogers).

What can companies monitor?

In most cases, whether monitoring is legal or not comes down to two questions:

  1. Who owns and stores the email, and
  2. Did the employee reasonably expect the email to remain private?

In other words, if the messages are stored on the company’s network instead of by a third party, as would be the case with a personal Yahoo or Gmail account, then the company can probably read them without any trouble.

But, as the above cases show, things are trickier when the situation involves a third-party, personal email account.

While employers are normally within their rights to monitor employees’ work e-mail, courts will usually draw the line when the data’s stored by a third party.

However, if employees are appropriately warned that their computer activity in the workplace can be monitored — and if the monitoring doesn’t go beyond what’s laid out in the company’s policies — then employees likely can’t sue if the company reads their personal email.


The post Does your email monitoring policy have these legal flaws? appeared first on HR Morning.

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