E-mail monitoring mistakes cost companies in court
December 7, 2009 by Sam NarisiPosted in: Communication, Compliance, In this week's e-newsletter, Latest News & Views, e-mail
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 have a greater tendency to protect employees’ privacy, even when they’re at work.
Take these recent cases:
- One company used a keylogging application 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 logged into her personal e-mail account to read messages she sent (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.
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Tags: e-mail, law, monitoring, privacy
December 8th, 2009 at 11:50 am
Curious…Were the employees informed that their email usage may be monitored? We inform our employees that their email and internet usage may be monitored for abuse. Also, in the past, I was told by an attorney that company’s should not open personal email accounts such as gmail, etc. (as when sent or read on a company computer). Seems as though he gave good advice. However, I do believe that too much personal use of one’s computer or too much use of a personal account on a company computer will suffice as abuse.
December 14th, 2009 at 4:07 pm
I saw something about this topic on TV last night. Nice article.
December 14th, 2009 at 5:44 pm
There is a gray line about using company computers for a litte personal e-mail or web surfing for example when on break, but it is usually well defined as to what is and is not permitted in the company policies. What companies do not understand is where they can and cannot go when ‘monitoring” an employee’s use of company computers. Employees should, if they must use a company computer to send a personal e-mail, always use a thrid party e-mail service and never use the company e-mail system. Think of some of the tasteless e-mails that the public may have received from someone@your-company-name-here.com“. That is a problem today.
December 16th, 2009 at 10:37 am
Paraphrasing the apocraphal book Serach: “As watched servant has many bruses”. The more workers are watched, the more they become paranoid, the less work is done in order to practice CYA. Sooner or later employers are going to stop panting over the shoulder of their employees if they want creative thinking or good workers (good worker will leave a “1984″ type employers, leaving drones behind that can not think). Good employers can tell by “their works” if some one is really productive. Besides, employees who write emails that contain sensitive personal data w/o encryption are asking for problems. Furthermore, employers should advise all employees that emails are never secure and can come back to haunt them later.
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