The growing proliferation of new technologies in the workplace, such as voice messaging, fax and electronic mail, have created an entirely new area of concern for both employees and employers: the balance between an employer’s ownership rights v. employee’s privacy rights. This issue comes up most often in the context of electronic mail or “E-Mail”.E-mail has become a useful and convenient means of communication, but is often used by employees in a remarkably casual fashion. There is a misconception that E-mail messages are private, and that an employer’s reading or reproduction of an employee’s E-mail message is unlawful. In reality, E-mail messages are no more confidential (and, in many ways, may be less so) than paper communications. In fact, a Federal Court in Pennsylvania recently determined that an employee has no reasonable expectation of privacy in an E-mail message, even if the company had given assurances to its employees that the messages would be private.
As a general rule, the E-mail message system is the property of the employer and, as such, is subject to access by the employer. Not only is an employee’s E-mail message subject to an employer’s review, but the use of E-mail to create harassing, off-color or otherwise inappropriate messages may expose the employee to discipline. For instance, an employee that sends a lewd E-mail message to another employee could expose the company, as well as the employee to a sexual harassment lawsuit. The same is true of information downloaded from the Internet. The ease of access to “offensive materials” on the Internet, and the ability to distribute words and images over an entire computer network, have added “fuel to the fire” of harassment claims by employees.
The policy should inform employees that E-mail messages are neither private nor confidential, and that they are subject to review, at any time, by the employer. Employees should also be warned that the content of an E-mail message could be used against them in disciplinary action. At WJ&L, LLP, we prepare employment handbooks for our employer clients that often include a policy dealing with privacy issues and workplace technology. For those of you interested in creating workplace policies, please contact our office for further information.
James Maggio is an associate in WJLP’s litigation department.