Most employers keep an eye on employees’ Internet and e-mail activity. But doing it the wrong way can get the company hit with an invasion of privacy claim.
The conventional wisdom: Anything an employee does on company-owned equipment can be monitored.
But the conventional wisdom is wrong in many cases, according to a recent Wall Street Journal article. As personal and professional lives continue to overlap, courts are more likely these days to stand up for employees’ privacy, even while they’re at work.
Take these recent cases:
- One company used a keylogging application (software that records everything an employee types) to monitor computer use. An employee sued after he learned his manager had read his personal e-mail. The employee won (Cite: Brahmana v. Lembo).
- An employee won $400,000 in court after her boss read e-mails she sent from a personal account. The employer argued it didn’t know about or authorize the snooping, but the company was held liable because the manager was acting to “further the interests” of his employer (Cite: Van Alstyne v. Electronic Scriptorium Limited).
- While investigating a discrimination claim, a company found e-mails the employee had sent to her attorney at work. Though they contained info that would’ve helped the company, the court ordered that they be deleted because the messages were protected by attorney-client privilege (Cite: Stengart v. Loving Care Agency).
In most cases, whether monitoring is legal or not comes down to one question: Who owns the e-mail?
In other words, are the messages stored on the company’s network or by a third party (as is the case with personal accounts, like Yahoo and Gmail)?
While employers are normally within their rights to monitor employees’ work e-mail, courts will usuaully draw the line when the data’s stored by a third party.
Also, keep in mind:
- Have a clear-cut computer use policy — Employees can also win in court when they show they have a “reasonable expectation” of privacy. So inform all employees that their Web use at work will be monitored.
- Train managers — Some supervisors will go to great lengths when they suspect an employee of wrongdoing. But they need to come to HR first, before they conduct an impromptu investigation that becomes an invasion of privacy.
