What right do employers have to access personal e-mail records or personal e-mail accounts that are on company-owned computers? — Robert, HR Manager in L.A.
Technology-related privacy concerns are on the rise for nearly every HR professional. We sought Trey Wichmann’s views on this question.
In this situation, the employer’s rights depend to a large extent on its e-mail policy. Employers who offer Internet and e-mail access to their employees should have something in their handbook, or even a stand-alone policy, that says that the employer has the right to—and will—monitor the e-mail and Internet traffic on its server. Some employers even include such a warning as a message that appears on-screen each time an employee logs on to a company server or computer. You are probably in good shape if your policy sets that forth in advance and the employee has signed it.
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The primary threat here is invasion of privacy claims, but those require that the employee had a reasonable expectation of privacy. An employer with a policy can say, “We told them they were going to be monitored. We told them that we reserve the right to do that, so therefore they didn’t have a reasonable expectation of privacy.”
That said, there certainly are things that I would want to be careful about reviewing. I would probably counsel against examining an e-mail with a subject line related to a medical issue. You really need to focus on objective business concerns—such as trade secrets going out the door or prevention of sexual or other types of harassment. Those are the primary types of e-mails that you want to keep an eye out for. Before implementation, you should review a new policy and your monitoring strategy with counsel.
In any event, the key is setting forth a very clear and explicit policy in advance.
Trey Wichmann is an associate at the San Francisco office of law firm Winston & Strawn.