Workplace e-mail raises privacy issues

More than 40 percent of all e-mail messages sent by employees do not involve work-related topics, according to Privacy in Employment Law, a report by University of Illinois Professor of Law Matthew Finkin. Consequently, an employer may want to monitor an employee’s use of e-mail to prevent misuse of agency resources. However, employers risk invading employees’ privacy if they monitor e-mail systems without notifying employees of their right to inspect messages.

The Fourth Amendment to the U.S. Constitution and right-to-privacy provisions in state laws and constitutions are the primary sources of a public employee’s right to privacy. Case law interpreting the constitutional right to privacy requires that searches or monitoring be based on “reasonable suspicion” or “legitimate business needs” such as the employer’s need to maintain efficiency in the workplace.

Under the “reasonableness” standard, privacy rights are violated only if public employees have an expectation of privacy that society is prepared to recognize as reasonable. That privacy expectation may be reduced by virtue of actual office practices and procedures or by legitimate regulation.

Ten states — Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina and Washington — grant their citizens an express right to privacy in their state constitutions. To prove invasion of privacy, however, a plaintiff must demonstrate that the employer engaged in highly objectionable monitoring, and, in some states, that the employer published the information.

In employment-related lawsuits, attorneys routinely use e-mail messages as evidence of wrongdoing. E-mail messages often are written informally, and, in some cases, they have been used to transmit derogatory or sexually explicit comments that are potentially incriminating to the employer or employee. For example, e-mail messages sent by employees of Chevron, including lists of “25 reasons beer is better than women,” cost Chevron $2.2 million in a sexual harassment case settled in February 1995.

In other cases, employees have been terminated for making inappropriate comments over the e-mail system. Employees often view e-mail as a short-term communication that will be seen only by the recipient and can easily be deleted, but total deletion of e-mail messages rarely occurs because back-ups to messages are made automatically in almost all e-mail systems.

To protect themselves from liability, public employers should establish an e-mail policy and require employees to sign a form agreeing with the policy. The policy may include the following points: * Computer systems are the sole property of the employer and may only be used for business purposes; * The employer reserves the right to monitor the system for any reason; * Messages that are derogatory, obscene, or otherwise inappropriate or unrelated to business are forbidden; * Violation of the policy may result in discipline, up to and including dismissal; * Deleting a message may not fully eliminate the message from the system; and * Personal use of e-mail is done at the employee’s own risk.

As the use of e-mail in the workplace increases, the need for a comprehensive policy becomes more important. A specific policy for e-mail protects the employer from potential litigation and warns the employee of risks involved in sending personal, inappropriate or non-business e-mails at the workplace. It may also provide a foundation of mutual trust and allow e-mail to serve its purpose as a legitimate business tool for elevated dissemination of information.