Legal experts weigh in on monitoring employee e-mails

Mar 1, 2006 12:00 PM

Employees generally know that sending non-work-related e-mails, or surfing to personal-interest Web sites while on the job, is not a wise idea — either as a matter of common sense or because their employers have explicit policies regulating their computer and Internet use. So says Bradden C. Backer, a partner with Finerty, Friebert and St. John S.C. in Milwaukee, quoted in the Wisconsin Law Journal.

“Right or wrong, I have seen very little push-back from employees who are told that their e-mails might be monitored. And I think the reason is in line with what the courts have said about this: That everyone assumes employers have this right, especially on their own equipment,” Backer says.

Attorney Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, D.C., disagrees. “If you reason that since it's the employer's equipment, they have the right to monitor, does that mean there's no expectation of privacy in the employer's restrooms as well?” he asks. “I think that in personal communications, and even for the use of the Internet, there should be some safeguards for employees' expectations of privacy.”

Rotenberg adds that another concern with employers monitoring employee computer use is that it might be done along with a host of other invasive practices. The popularity of video surveillance of the workplace, along with testing employees for drug use, truthfulness or even genetic predispositions, is increasing steadily.

“Workers' rights do not trump everything. Certainly, businesses not only have the right but also the obligation to protect their assets, trade secrets, and customer and client interests, as well as to comply with federal law,” Rotenberg tells the Wisconsin Law Journal.

According to a 2004 survey from the American Management Association and the ePolicy Institute, 31 percent of respondents say they spend about 90 minutes per day on instant messaging. In a separate question, 10 percent of the respondents said they spend four or more hours on e-mail.

The same survey found that 60 percent of the employers said they monitor incoming and outgoing e-mail, but only 27 percent said they monitor internal e-mails between employees. In addition, only 10 percent use IM/gateway management software to monitor, purge or retain IM.

The answer for employers is not an all-out ban on employees' personal use of e-mail, Backer tells the publication. Instead, a written policy regarding employees' use of technology should be consented to upon hiring. That policy should additionally put employees on notice that employers have the right to monitor their technology use. Backer cautions to use that power sparingly.

“I do not think it's necessary to be checking people's e-mail like an automaton.”

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