Reprinted with permission by Findlaw.com.
Employees should be aware that their work emails generally are not considered private. Indeed, many employees are required to sign policies whereby they agree that their employers have the right to monitor their workplace electronic communications. And judges generally have upheld the right of employers to monitor such employee communications.
Why do employers want to monitor the electronic communications of their employees? Perhaps the primary reason is to ensure that confidential company information, such as company intellectual property, is not improperly being sent outside the company to unauthorized recipients by way of outbound email. In addition, companies want to prevent communications that wrongfully disparage or defame others, and they want to stop and communications that are harassing. Also, monitoring can help to evaluate whether employees truly are productive or are focusing on non-work matters while at work.
A recent study by Proofpoint reveals that 44% of surveyed U.S. companies reported that they have investigated leaks of confidential information by way of emails within the last year. Also, 41% of large companies with more than 20,000 indicated that they actually have tasked staff to scrutinize the content of outbound email. In fact, 22% of these companies have hired staff principally for this function.
Such activities have led to 26% of surveyed companies having terminated employees for violating email policies within the last year. In addition, 23% of these companies report that their business has been impacted by improper exposure of sensitive information.
Surveyed companies not only are concerned about wrongful revelation of confidential company information through outbound email, but they also are worried about employee use of message boards, blogs, mobile devices and media sharing sites like YouTube. Employers likely will be reaching into these areas too in terms of monitoring employee workplace communications. Employers are building policies around these communication forms and even are restricting access to certain types of communications while on the job.
So, what is the bottom line? Employers must be diligent in terms of appropriately ensuring proper employee workplace communications. Meanwhile, employees must fully understand what they can and cannot do when it comes to their electronic communications while on the job. This requires education of employees by employers, and certainly augers in favor of clear and comprehensive written policies to be provided and signed by employees.
Employees must also be informed and must understand that they should conduct their truly private communications outside of the workplace, work time, and the means of communication provided by their employers. And even when not in the work context and when not using work communications means, employees must know that they still should not reveal confidential company information to others, and they should not disparage, defame or harass others.
Electronic communications like email are spontaneous and fast. Nevertheless, before sending an email, a deep breath should be taken to make sure that its content is appropriate, especially as it may be analyzed by the employer.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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