Is email monitoring legal?
By Mike Spykerman – CEO Red Earth Software
This article discusses the legal aspects surrounding email monitoring and advises
companies how to monitor employees' emails without violating privacy rights.
According to a survey by Quicktake, 42% of employers monitor their employees'
emails. However, Michael Overly (author of E-policy1) found that only 60% of the
employers who monitor emails actually have an adequate written policy in place.
By monitoring emails without warning, employers are arguably infringing on an
individual’s privacy and therefore susceptible to workplace privacy lawsuits. With
a 3000% increase in privacy lawsuits filed over the paste decade2, it is a very real
possibility that a disgruntled employee might try to seek compensation from your
company in this way. However, as can be concluded from the court cases
discussed below, employers can successfully protect themselves from these
claims by implementing a sound email policy and taking uniform measures.
It is important to make two distinctions concerning the legality of email
monitoring:
Federal and state law
The first distinction is one between federal law, which tends to be more biased
towards the employer, and state law, which is usually the opposite. Under federal
law the Electronic Communications Privacy Act (ECPA) allows companies to
monitor employees' emails when one of three provisions are met: one of the
parties has given consent, there is a legitimate business reason or the company
needs to protect itself. Even though the ECPA requires a provision to be met,
under federal law companies are generally allowed to monitor employees' email.
However, companies need to be aware that this act might be subject to change.
In July 2000 legislators proposed the Notice of Electronic Monitoring Act in which
employers would be required to notify new employees of any electronic
monitoring and provide annual notice to all employees. Employers that failed to
inform employees of email monitorin