Monitoring employees’ emails can serve many purposes, including, but not limited to, ensuring proper usage of an employer’s electronic communications systems and reviewing an employee’s productivity during an employee’s shift or workday, according to employment law attorneys Jill Vorobiev and Mallory McCarthy.

However, employers who monitor employees’ emails must comply with numerous federal and state laws, and employers should familiarize themselves with such before engaging in monitoring.

Generally speaking, prior to reviewing an employee’s emails, an employer should ensure there is a legitimate business reason for doing so. Further, in conjunction with having a legitimate business reason for monitoring, ensure that any employee surveillance and monitoring is properly tailored to serve such reason.

Monitoring an employee’s emails may cross a line when an employer fails to notify employees that the employer may monitor and access employees’ emails. As such, employers should ensure that they implement an electronic monitoring policy that, among other things:

• identifies the employees and electronic communications devices that may be subject to monitoring
• notifies employees that they do not have an expectation of privacy, and
• requires employees’ written acknowledgment of the policy and consent to monitoring.

Employers should also ensure that their monitoring of employees’ emails complies with federal, state and local anti-discrimination laws and the National Labor Relations Act. For example, employers monitoring employees’ emails should not violate the terms of any applicable collective bargaining agreement or conduct unlawful monitoring of employees’ union-related activities.

Director of HR Jodi Glitzenstein says: If an employee signs an agreement upon hire acknowledging that their electronic communications may be monitored at any time for any reason and there is no expectation of privacy, yes, employers can monitor employee emails. Or, if there is a policy stating the same, yes.

However, I recommend establishing a process for this to occur so a supervisor does not just randomly do it without a justifiable reason. Such procedures should include:

• oversight and approval from someone higher up in the organization
• the existence of a business need to monitor email, and
• the OK for access.

However, IT should be able to monitor at random for disclosure of business secrets and for sending and receiving of inappropriate material (and this should be written into an IT policy).

It’s not OK to look at employee emails unless you have a valid business purpose, says VP of HR Jackie Plunkett.

While your electronic assets and email policies should state that employees should not have any expectation of privacy, it’s still not OK to monitor email regularly. Situations you can monitor — when there is a subpoena, legal investigations, compliance needs — and then only specifically related to that. Monitoring for performance is not a good idea. Things to consider based on your geographic area of operation include privacy laws and consent. Consult with a legal professional before proceeding.

My first instinct is to check with legal counsel regarding the specifics of why you think it would be advisable to do so, says HR Manager Ellen Huelmann.

Guidelines should be provided, HR senior leadership should sign off on the decision, and a very limited number of individuals in IT should be selected to assist with the task.

Decisions about email monitoring should be based on a legitimate, work-related need to know and not as a substitute for actively managing the employee in question.

In other words, don’t do it just because you can — say, you’re worried about an employee’s productivity so you decide you should monitor their email (and/or Internet use). That’s not a substitute for actively engaging with the employee and diving into what is hindering their productivity. Don’t look to monitoring unless you have a compelling reason and have done a proper investigation first.