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Include Web-Based Email Accounts Such As Gmail and Yahoo As Well As Instant Messages

Employers have broad authority to monitor employees in various ways using technology. While monitoring raises privacy concerns, courts have generally found limited expectations of privacy when using employer-provided equipment and systems. Employers are allowed to monitor email, phone calls, video, computer usage, and physical workspaces to evaluate performance and prevent issues unless specific policies provide otherwise. Employees should assume little privacy and be aware that digital data can be retained even if deleted. Some restrictions apply to audio-visual monitoring of private areas or privileged attorney communications.

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Erick Colon
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138 views4 pages

Include Web-Based Email Accounts Such As Gmail and Yahoo As Well As Instant Messages

Employers have broad authority to monitor employees in various ways using technology. While monitoring raises privacy concerns, courts have generally found limited expectations of privacy when using employer-provided equipment and systems. Employers are allowed to monitor email, phone calls, video, computer usage, and physical workspaces to evaluate performance and prevent issues unless specific policies provide otherwise. Employees should assume little privacy and be aware that digital data can be retained even if deleted. Some restrictions apply to audio-visual monitoring of private areas or privileged attorney communications.

Uploaded by

Erick Colon
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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1.

Introduction
Technology allows employers to monitor many aspects of their employees' workplace
activities. While employees may feel that such monitoring is a violation of their privacy rights,
many types of monitoring are allowed under the law. A majority of employers monitor their
employees. They are motivated by concern over litigation and the increasing role that
electronic evidence plays in lawsuits and government agency investigations.
Employers use technology to provide insight into employee behavior based on the trail of
"digital footprints" created each day in the workplace. This technology can piece together all of
these electronic records to provide behavior patterns that employers may utilize to evaluate
employee performance and conduct. For example, it might look for word patterns, changes in
language or style, and communication patterns between individuals. This makes it possible for
employers to monitor many aspects of their employees' jobs, especially on telephones,
computer terminals, through email and voice mail, and when employees are online.
Almost everything you do on your office computer can be monitored. Such monitoring is
virtually unregulated. Therefore, unless company policy specifically states otherwise (and even
this is not assured), your employer may listen, watch and read most of your workplace
communications. Courts often have found that when employees are using an employer's
equipment, their expectation of privacy is limited.
It's important to be aware that your employer's promises regarding workplace privacy issues
may not always legally binding. Policies can be communicated in various ways: through
employee handbooks, via memos, and in union contracts. For example, if an employer
explicitly states that employees will be notified when telephone monitoring takes place, the
employer generally must honor that policy. There are usually exceptions for investigations of
wrong-doing. If you are not already aware of your employer's workplace privacy policies, it is a
good idea to become informed.

3. Email Monitoring
Is my work email private?
If an email system is used at a company, the employer owns it and is allowed to review its contents.
Messages sent within the company as well as those that are sent from your terminal to another
company or from another company to you can be subject to monitoring by your employer. This may
include web-based email accounts such as Gmail and Yahoo as well as instant messages.
Employees should assume that their email is being monitored and is not private. Several workplace
privacy court cases have been decided in the employer's favor. See for example:

Smyth v. Pillsbury

Falmouth Firefighters Union v. Town of Falmouth


Are emails to an employees's attorney protected by attorney-client privilege?
A New Jersey court has placed some limitations on an employer's policy that personal emails are
not private. In Stengart v. LovingCare Agency, Inc., the court ruled that attorneys for an employer
violated the privacy rights of a former employee and the rules of professional conduct by reading
emails the employee sent to her counsel on a company laptop through her personal passwordprotected Yahoo email account.
The court held that the attorney-client privilege applied to emails even though the employer had a
general policy stating that the employee should have no reasonable expectation of privacy in
communication sent over company equipment. The court zeroed in on the attorney-client privileged
nature of the emails. The court did not address whether the employee would have had a reasonable
expectation of privacy with respect to personal email communications with a non-lawyer.
In Holmes v. Petrovich Development Company, LLC, a California court ruled that emails sent by an
employee to her attorney from a computer in her workplace were not protected by attorney-client
privilege. However, unlike the Stengart case, this employee used a company email account (rather
than a personal webmail account) to send the emails. The court noted that the employee had been
(1) told of the companys policy that its computers were to be used only for company business, (2)
warned that the company would monitor its computers for compliance with this policy, and (3)
advised that employees using company computers have no right of privacy.
My employer's email system has an option for marking messages as "private." Are those
messages protected?
In most cases, no. Many email systems have this option, but it does not guarantee your messages
are kept confidential. An exception is when an employer's written email policy states that messages
marked "private" are kept confidential. Even in this situation, however, there may be exceptions.
(See Smyth v. Pillsbury above.)
Is there ever a circumstance in which my messages are private?
Some employers use encryption to protect the privacy of their employees' email. Encryption
involves scrambling the message at the sender's terminal, then unscrambling the message at the
terminal of the receiver. This ensures the message is read only by the sender and his or her
intended recipient. While this system prevents co-workers and industrial "spies" from reading your
email, your employer may still have access to the unscrambled messages.
When I delete messages from my terminal, are they still in the system?
Yes. Email systems retain messages in memory even after they have been deleted. Although it
appears they are erased, they are often permanently "backed up" along with other important data
from the computer system.

4. Telephone Monitoring
Can my employer listen to my phone calls at work?
In most instances, yes. For example, employers may monitor calls with clients or customers for
reasons of quality control. However, when the parties to the call are all in California, state law
requires that they be informed that the conversation is recorded or monitored by either putting a
beep tone on the line or playing a recorded message. (California Public Utilities
Commission General Order 107-B)
Not every business is aware of this requirement, so your calls might still be monitored without a
warning. Federal law, which regulates phone calls with persons outside the state, does allow
unannounced monitoring for business-related calls. See Electronic Communications Privacy Act, 18
USC 2510, et. seq.
An important exception is made for personal calls. Under federal case law, when an employer
realizes the call is personal, he or she must immediately stop monitoring the call. (Watkins v. L.M.
Berry & Co., 704 F.2d 577, 583 (11th Cir. 1983)) However, when employees are told not to make
personal calls from specified business phones, the employee then takes the risk that calls on those
phones may be monitored.
Can my employer obtain a record of my phone calls?
Yes. Telephone numbers dialed from phone extensions can be recorded by a device called a pen
register. It allows the employer to see a list of phone numbers dialed by your extension and the
length of each call. This information may be used to evaluate the amount of time spent by
employees with clients.
Employers may use pen registers to monitor employees with jobs in which telephones are used
extensively. Frequently, employees are concerned that the information gathered from the pen
register is unfairly used to evaluate their efficiency with clients without consideration of the quality of
service.
If I wear a headset, are my conversations with co-workers subject to monitoring?
Yes. The conversations you have with co-workers are subject to monitoring by your employer in the
same way that your conversations with clients or customers are. If you wear a headset, you should
use the same care you would if you were talking to a customer or client on the phone. Some
headsets have "mute" buttons which allow you to turn off the transmitter when you are not using the
telephone.

6. Audio and Video Monitoring


Can employers use video monitoring in the workplace?
For the most part, yes. Video monitoring is a commonplace method of deterring theft, maintaining
security and monitoring employees. For example, a bank may utilize video monitoring to prevent or
collect evidence on a robbery. A company may also use video monitoring in a parking garage as a
security measure for employee safety.
Employers may also use cameras to monitor employee productivity and prevent internal theft.
Currently, federal law does not prevent video monitoring even when the employee does not know or
consent to being monitored.
Are there situations where an employer cannot use video cameras?
In some instances, courts have upheld employee privacy. Specifically, courts have sided with
employee privacy in instances where the monitoring has been physically invasive, such as hidden
cameras in a locker room or bathroom. See National Workrights InstitutesElectronic Monitoring in
the Workplace: Common Law & Federal Statutory Protection for a more in-depth discussion.
Some state laws may have restrictions on where, how and why an employer may videotape
employees. Labor unions may negotiate limitations on video recordings of unionized workers.
Union members should speak with a union representative if they have concerns about workplace
video monitoring.
What about video cameras that include audio surveillance?
Video cameras that also capture audio recordings may be subject to laws relating to audio
recording, including wiretap and eavesdropping laws. Federal law does not prohibit audio recording
of phone conversations as long as one party on the call consents to recording. Most states have
extended this law to include recording in-person conversations. Some states have laws that require
that all parties in a conversation consent to audio recording. For a state-specific guideline of laws
regarding audio recording, visit Can We Tape? A Practical Guide to Taping Phone Calls and InPerson Conversation in the 50 States and D.C.

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