Magazine article Business Credit

E-Mail, Voice-Mail and the Internet: How Employers Can Avoid Getting Cut by the Double-Edged Sword of Technology

Magazine article Business Credit

E-Mail, Voice-Mail and the Internet: How Employers Can Avoid Getting Cut by the Double-Edged Sword of Technology

Article excerpt

There is no doubt that employers are benefitting from the effectiveness and cost efficiency of electronic mail (email), voice-mail and access to the Internet. However, this technology is a double-edged sword because it can also work against an employer and even result in liability for invasion of privacy, claims for sexual harassment and/or sex discrimination, among others. This article offers guidance for employers on how to minimize the potential for liability and maximize the benefits of these communication innovations.

Employers are generally aware of their employees' rights of privacy arising from the United States and California Constitutions. They must also be familiar with the Federal Electronic Communications Privacy Act of 1986 which prohibits interception of electronic communications. An employer may, in certain circumstances, intercept employee electronic communications where, for example, the employer is the provider of the communication system and the system is used in the ordinary course of business, or, if the employee gives prior consent. California also prohibits interception and recording of confidential communications, unless it is done with the consent of "all" parties to the communication.

Both federal and state law contain restrictions regarding the interception of communications in transit by employers, but do not restrict access or retrieval of stored communications in the employer's files, or to internal monitoring of communications. Although, under both federal and California law, employers are permitted to use significant discretion on whether or not to monitor electronic communications, the employer's right to do so is tempered by the employee's reasonable expectations of privacy. The reasonableness of an employee's expectation is determined by evaluating all the relevant circumstances. The most compelling factor is whether the employer communicated a written policy to its employees that electronic communications generated on the employer's system are not private and are, in fact, monitored. Also, if employees are required to advise their supervisors of their passwords, this helps defeat a later claim that the employee reasonably believed that no one else could access or disclose their communications.

The Burdens of E-mail in the Workplace

While one of the benefits of e-mail is that it is paperless, it is precisely because it is less formal than traditional mail that employees and employers alike draft messages capriciously and with less care. A false sense of confidentiality is also inherent in e-mail because it gives the impression that only the recipient has sole access to the message. But once a user clicks on the "send" button, the message can easily be stored, retrieved, copied or disseminated by the recipient.

Because e-mail is generally "stored" by companies, the production of these files is the latest discovery tool in litigation. For example, e-mail evidence has been used by an employer to show that the terminated employee, now suing for wrongful termination, created dissention among co-workers by criticizing them on the in-house e-mail system, and also used profanity which reached a customer via an Internet link. In another case, a Pennsylvania court found that an employee did not have a reasonable expectation of privacy in communications voluntarily made to his supervisor over the company e-mail system, notwithstanding the company's assurances that its email would not be intercepted or used as grounds for discipline. There currently being no analogous case decided in California, the absence of a policy notifying employees that communications may be monitored (thus defeating any legitimate expectation of privacy) can result in litigation when the employer somehow intercepts sensitive private communications - regardless of the legitimacy of the employer's motive.

A common concern for employers is what to do when an employee disseminates offensive e-mails. …

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