In a 91 pages opinion, the National Labor Court laid down a
clear set of rules on employers right to monitor their employees
email messages. The rules impose severe restrictions on that right
and employers should consider reforming their workplace policies
The issue that was brought before the court was whether an
employer may access employees email messages and submit them as
evidence in the course of court proceedings brought by the employee
against the employer. Typically, the employer wishes to present
evidence obtained from the employee's email account, in an
effort to dismiss the employee's claim for unlawful
termination. However, a "Fruit of the poisonous tree"
evidential rule under the Privacy Protection Act, prohibits
submission of evidence obtained through invasion to privacy.
Chief Judge Nili Arad delivered the National Labor Court's
opinion on two appeals from District Labor Courts that reached
inconsistent decisions related to the employers' rights in that
The court laid down the following principles:
In light of the employer's proprietary interest in the
workplace and managerial prerogative, the employer should set a
balanced policy for use of the corporate IT and email systems. The
employer must bring the policy to the attention of the employees
and must incorporate the policy into their personal employment
A clear line should be drawn between an email account allocated
by the employer to an employee and an employee private email
account, such as a webmail account.
An employer may allocate accounts to employees and designate
them for work related purposes only ('professional purpose
accounts'), or for personal purposes as well ('dual purpose
accounts'), or for the employer's personal purpose only
('personal purpose account').
If the employer makes the employees aware of the e-mail
monitoring policy, then the employer may monitor the traffic data
and contents of professional purpose accounts. However, if an
employee uses the mailbox for personal e-mail exchange, even if in
violation of the corporate policy, then the employer may access the
personal messages in that account only subject to the
employee's explicit, informative and freely given consent and
only if the contents of such personal messages are unlawful or
The employer may monitor and access personal messages in dual
purpose and personal accounts, subject to the following terms: (1)
There are unusual circumstances that justify access to the
messages; (2) The employer first uses less invasive tools that
reveal the monitored employee's misconduct; (3) The employee
gives explicit, informative and freely given consent to the
corporate policy and specifically to the monitoring of or access to
his personal (not work related) messages; (4) The employee provides
specific consent to each access by the employer to the contents of
personal messages in a dual purpose account, or specific consent
for any surveillance activity by the employer which include access
to a personal account, and to personal content in such
An employer may not monitor or access an employee private email
account, even if the employee uses the workplace IT system to
access the account and even if the employee consented to such
access. An employee's private account may be accessed only
subject to an appropriate court order, that courts grant on rare
Based on the above laid down principles, the court granted the
employees' motion to suppress the evidence in both cases,
because the employers obtained the evidence while unlawfully
invading the privacy of their employees.
Employers should carefully study the opinion and make all
necessary adjustments to comply with its requirements. Specific
attention should be given to the corporate policies, employment
contracts, adequate consent processes and to harmonizing the
corporate information security system and policies with a new
pro-privacy workplace environment.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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