United States: The Dust Has Settled, But the Issue Remains: How Can Employers Avoid Liability for Monitoring Their Employees’ E-mails and Internet Usage?

Earlier this year, a commotion was caused when it became public that Harvard University had monitored, accessed, and reviewed several Harvard deans' e-mails as part of an internal investigation.  While the dust seems to have settled, at least publicly, for Harvard, its actions brought to the forefront an issue that sometimes flies under an employer's radar — namely, whether employees have a right to privacy in their electronic communications when using an employer's computer or e-mail systems.

Although, from a legal standpoint, employees generally do not have a right to privacy when using their employer's electronic equipment and systems, this generality is subject to exceptions and limitations.  Thus, employers are cautioned to tread carefully in order to protect themselves from employee invasion of privacy claims.  For an employee to succeed on an invasion of privacy claim, the employee must generally show that he/she had a reasonable expectation of privacy in his/her electronic communications and Internet usage and that this privacy interest outweighs the employer's articulated legitimate business interest in monitoring or accessing the information.

So what can employers do to protect themselves from liability for one of these claims while still monitoring and accessing employee electronic information on employer equipment?

Implement a clear written policy.  While it may seem obvious, the first line of defense against an invasion of privacy claim is a written policy informing employees that they have no privacy rights when using employer equipment.  This type of policy, if carefully written, may seriously undercut an employee's allegation that he/she had a reasonable expectation of privacy in the first instance, thereby making it difficult, if not impossible, for that employee to meet his/her burden on an invasion of privacy claim.  Employers are best served by, among other things, explicitly notifying employees in the policy itself that the employer may access, monitor, and review e-mail accounts and online activities on employer equipment, and that employees have no expectation of privacy in their e-mail and use of the employer's equipment.  The policy also should be drafted broadly so as to encompass as much technology and employee activity as legally possible.  Because a properly crafted and implemented policy could eviscerate any employee reasonable expectation of privacy argument, and in the wake of the media attention recently given to this issue, employers are encouraged to work with their employment counsel on such a policy.

Update investigation policies and procedures to reserve the right to access and use employee electronic information on employer equipment.  Employers can also gain some headway by including a line in their general investigation policies and procedures in which the employer specifically reserves the right to access and use employee e-mails and Internet history in connection with any investigation, whether it be for sexual harassment, discrimination, whistleblower allegations, code of conduct violations, or for any other general employee complaint that requires investigation and so long as a legitimate business interest is being served by the access and use.  Because the legitimate business interests of employers can be fairly broad and may vary depending upon, among other things, the type of business, the location, and the clients, employers should consult with knowledgeable counsel to ensure that the interests served by a review of employee electronic information are narrow enough to survive legal scrutiny.

Ensure compliance with, and take advantage of, state and local laws.  As with many other issues affecting the workplace, employers are also reminded to consider state and local laws when addressing this issue.  States and localities may provide greater or different restrictions on employer monitoring of employee's electronic communications on employer-provided equipment.  Delaware, for example, restricts employers from monitoring or otherwise intercepting any telephone conversation, e-mail, or Internet access or usage by a Delaware employee unless the employer either provides the employee electronic notice of employer monitoring or intercepting policies at least once during each day the employee accesses the employer-provided e-mail or Internet, or has first given a one-time written notice to the employee of the monitoring or intercepting activity or policies, the receipt of which is acknowledged, in writing, by the employee.  Knowing the law of the state or city in which an employer does business can help the employer not only ensure compliance with those laws but also take advantage of any exceptions or carve-outs that may be available under certain circumstances.

Technology is constantly evolving, so the concept of privacy and how it relates to technology used in the workplace will necessarily continue to change.  As a result, the way courts interpret privacy laws in the workplace may also change.  Employers must remain vigilant of changing laws and interpretations and stay ahead of, not behind, this issue.

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.