When Should Employers Be Monitoring Employee Email?

Shannon Green

Corporate Counsel

03-13-2013

Harvard University faculty members were up in arms this weekend over news, first reported in the Boston Globe, that administrators had secretly searched the email accounts of 16 resident deans, in a search for information about media leaks related to a cheating scandal.

It’s not at all uncommon for companies to monitor employee email. But under what circumstances does it make sense for an employer to do so? And what can an employer do to manage their employees’ privacy expectations?

Adam Fiss, a partner in the San Jose office of Littler Mendelson, says that most employers have broad policies—typically found in an employee handbook or presented as employees log into an email system—that put workers on notice that email monitoring may occur. But as a practical matter, he says, employers tend to more actively pay attention to the Internet use of their employees than their electronic communications.

Email-monitoring software is becoming more readily available to employers, says Fiss, which saves time compared to having an IT employee manually review messages. But he says that not too many companies have yet made use of such software.

When employers do read employee email, it’s typically done on a reactive basis. “Some issue has been brought to their attention that warrants looking at an employee’s email account to determine whether they’ve violated the company’s policies on harassment, discrimination, retaliation, et cetera,” says Fiss, “or whether they have shared, as in the case of Harvard, confidential information or information that shouldn’t be otherwise disclosed.”

And in certain situations, Fiss says, it may be in the employer’s best interest not to immediately disclose that the email has been read.

For example, if the employer is investigating a retaliation claim and finds information in the email that supports the claim, tipping the employee off might prevent the employer from getting to the truth. “You’d be giving them advance notice,” says Fiss, “ and they’d be looking into their email account and potentially preparing answers to questions they anticipate.”

Gerald Lutkus, a partner in the South Bend, Indiana, office of Barnes & Thornburg, also advises against most ahead-of-time warnings. But he says it’s generally good practice to alert employees after their mail has been read.

“There’s a real value to that on a couple of levels,” according to Lutkus. “One benefit is that you’re being transparent. People may be outraged, they may be upset, but they know what’s going on.”

By letting employees know when their email has been read, Lutkus says employers have an opportunity to underscore their email policy. “I think by doing so, you’ll see conforming behavior by employees,” he says. “They realize, ‘Oh, that’s not just words in a policy, you guys do that.’ ”

Lutkus helps companies write policies that make it clear to employees that the employer reserves the right to monitor use of the company email system. He says that although no company has time to do so on a regular basis, it’s almost universal to do so when workplace complaints or confidential disclosures arise.

Lutkus says that he would expect to see more outrage in an academic setting than there might be in a manufacturing plant, But in most cases, the classification of the employee won’t affect the legality of an examination.

“If you’ve done this right,” says Lutkus, “when people know going in that this is something that could happen, it should lessen any sense of outrage over privacy invasion.”