Can Your Employer Legally Be a Snoop?

As you’re at work, it is likely you send many emails a day, perhaps even a few personal emails. As a result, employees wonder about an important question: Whether during a break or during your paid time, is it ok for your employer to look through your emails or other correspondence without your permission? The answer is not so simple. Employers have more rights than you would think when it comes to snooping around in your work email, however, the laws vary from state to state and largely depend on the company’s written policies and contracts with its employees. Yet that doesn’t mean as an employee, you are not protected. Employees still have rights, and it is vital that you understand yours.

Here’s a section of my book “The Employee Rights Handbook” that deals with the “do’s” and “don’ts” when it comes to what an employer can look at. Get informed and know your rights to see if your employer is crossing the line!

E-Mail Messages, Blogging and Related Subjects

Does an employer have the right to monitor e-mail messages or intercept your mail? This often depends on the facts of each case and the law in your state. While you may consider your electronic-mail communications to be confidential, think again, especially when the employer has a written policy in a contract, employee manual or other workplace personnel guide stating that electronic mail be used solely for business purposes and that the company has the right at any time to review, audit, and disclose all materials sent over or stored in its e-mail system. When such monitoring policies state that work e-mail belongs to the employer, employees have diminished privacy rights regardless where the e-mails are written or received.

The law is less clear whether employers may legally access an employee’s or former employee’s e-mails, which were sent from or received through a personal Gmail, Hotmail or other e-mail account and transacted through a company-issued computer. Although violations of several federal laws are sometimes cited by lawyers for employees, most notably the Stored Communications Act (SCA) and the Electronic Communications Privacy Act (ECPA), cases often hinge on whether an employer has a right to access the computer or e-mails and if the employee was notified and thereby aware of the policy. However, if an employer forensically analyzes a former worker’s computer issued by the company and discovers e-mails sent to an attorney from a personal AOL account which did not go through the company’s servers, a court may determine it illegally viewed privileged lawyer-client communications, especially when no written personnel policy warning employees that their e-mail and computer use is regularly monitored (creating an expectation of privacy), even if they are sent remotely over a portable device.

With such a written policy, an employer can prohibit non-job related solicitations on company e-mail and employees can be legally disciplined and/or terminated for violating the policy. Additionally, although the National Labor Relations Act (NRLA) recognizes that employees and unions have the right to communicate with each other in order to organize, solicit and/or bargain effectively, the National Labor Relations Board ruled it was legal for a company to deny a union or employees seeking to solicit or organize from using company e-mail systems as a means to communicate. Experts suggest the recent ruling allows most U. S. employers a basic property right to lawfully control access to their e-mail systems and block usage to anyone attempting to organize its work force. (Note: The ruling also stated it was illegal discriminatory enforcement for the same employer to allow employees’ use of its e-mail system as a tool to organize meetings for private clubs or promote private organizations or profit-making ventures.)

STRATEGY: Avoid sending personal e-mails at work because they cannot be destroyed. The author has represented employees who were fired and/or forced to forfeit large severance payments and other compensation after sending disloyal, defamatory or damaging e-mail statements to co-workers. Such comments were discovered before or during the discovery phase of a lawsuit with devastating financial consequences. In fact, one of the first things a company or its lawyers is sure to examine these days after a firing is all of the departing employee’s e-mails to avoid paying severance or use such information as leverage (e.g., a counterclaim to your lawsuit). Thus, avoid sending non-business e-mail communications where possible. Choose the tone and content of your words carefully.

On the other hand, harassing text messages received from co-workers, managers, supervisors, and others can prove to be potent evidence in sexual harassment cases filed by disgruntled female employees. Text messages leave behind an electronic record and help prove harassment, hostile or bullying environments in the workplace. Experts suggest that textual harassment is on the rise and large verdicts have been obtained by exploited workers whose lawyers use offensive text messages as proof of illegal conduct. Thus, save harmful offensive text messages if you receive them and speak to a knowledgeable employment attorney immediately to consider the best course of action to take. Armed with such information, for example, your lawyer may recommend you first to complain to management before instituting a lawsuit if the matter is not amicably resolved.

Blogging has become quite popular as employees use the medium as a forum for venting their frustrations about their employer and co-workers. Can an employer suspend or terminate a worker who posts defamatory material or confidential salary and pay policies on her personal blog? What about a well-intentioned employee who accidentally creates blog entries that disclose company trade secrets?

In virtually all at-will employment states, companies may discharge workers for any non-discriminatory reason. This means an employer has the legal right to fire any worker who posts a negative blog about the company or reveals confidential or proprietary information, even by mistake. Generally, no expectation of privacy exists when an employer publishes a written policy stating that anyone posting a negative blog about the company, its products, or personnel will not be permitted and will lead to immediate discipline, up to and including discharge.

However, experts suggest it may be illegal for companies to make hiring and firing decisions based on personal information discovered by written blogging or social networking, such as on Facebook. While employers may desire to use blogging and social networking sites for hiring purposes to learn more about an applicant or employee, doing so could violate a host of laws in the areas of privacy, discrimination, and fair financial practices. For example, a Facebook profile may contain private data and information about a person’s health, financial condition, and political beliefs, which are generally off-limits to employers; using such information in hiring and employment decisions may be illegal. In fact, some states (notably California and New York) forbid employers from negative employment decisions due to a person’s off-premises conduct or lifestyle.

Speak to a knowledgeable employment attorney if you believe or learn a potential or current employer misused private personal information from a personal blog or social networking site to effectuate a negative employment decision. The law is not well settled in this area so consulting a competent attorney to learn more or researching the law in your state is a good idea.

STRATEGY: While employers may have the right to review e-mail with such a policy in place, they generally cannot open your personal mail, especially mail marked “Personal and Confidential.” Speak to a knowledgeable employment attorney immediately if you feel your privacy rights are being violated.

All forms of employee testing raise significant issues of potential violations of an employee’s privacy rights. This includes honesty, psychological, and personality tests, genetic screening, substance abuse tests, and polygraph examinations (previously discussed in this chapter). This section will examine some of the issues involved.

For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!

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