Nowadays, you shouldn't expect the email messages you write at work to remain private. Courts usually side with the employer when it comes to email privacy. And legality aside, many employers monitor employee email. This article explains the rules, the reality, and how to stay out of trouble. (To learn about the workplace rules regarding employer surveillance and employee blogging during work hours, read Nolo's articles Cameras and Video Surveillance in the Workplace and Fired for Blogging.)
Technology now makes it possible for employers to keep track of virtually all workplace communications by any employee. And many employers take advantage of these tracking devices to read employee email: A 2007 survey conducted by the American Management Association (AMA) revealed that 43% of the responding companies monitor employee email, and 28% of them had fired an employee for misusing email.
Why all the interest in what employees are writing? Part of it is a desire to avoid legal liability: Email creates an electronic document, which employers may have to hand over if they're sued. The same AMA study showed that 15% of the companies surveyed had faced a lawsuit triggered by employee email.
Emails sent or received through a company email account are generally not considered private. Employers are free to monitor these communications, as long as there's a valid business purpose for doing so. Many companies reinforce this right by giving employees written notice (for example, in an employee handbook) that their work email isn't private and that the company is monitoring these messages. However, even if your employer doesn't have this type of written email policy, it still probably has the legal right to read employee email messages transmitted through company accounts.
On the other hand, if your company takes affirmative steps to protect the privacy of employee emails, it might have restricted its ability to monitor these communications. For example, you might have a stronger expectation of privacy if your employer has assured you that company emails are private, if your employer’s system allows messages to be designated "confidential," or if you are allowed to create a private password known only to you.
No matter what, employers can’t monitor employee emails for illegal reasons. For example, it would be illegal for your employer to monitor emails to target or discourage protected activity—such as employee efforts to unionize.
An employer’s ability to monitor emails sent or received on an employee’s personal, web-based account (for example, a personal Gmail account) is more complicated. In general, this type of monitoring is more likely to be allowed if the employee is using company equipment and has consented in writing to the employer’s monitoring of all computer use. For example, many companies will have employees sign a written acknowledgement of a company policy that company-issued equipment is for business use only and that all activities will be monitored by the company. (However, as an exception to “business use only” policies, employers must allow employees to use work email for union-related activities on their own time.)
Employee privacy in electronic communications is a complicated and still developing area of law. States might also handle the matter differently, depending on the circumstances of the monitoring. If you believe your employer violated your privacy, you should consult with a local employment attorney about whether you have a claim.
Legality aside, the truth is that many employers now routinely monitor email their employees send and receive. For example:
Workers who logically assume their messages are gone for good when they delete them—especially if they were never sent in the first place—are very often wrong.
So how can you avoid problems with workplace email? Treat your email system at work as you should your business phone. Strictly limit your communications to work-related activities and don’t access your personal email account on company equipment. Don't send any messages that others might interpret as bigoted or unkind; even if your intent was humorous or lighthearted, it won't look that way to others.
The golden rule of manners applies to email as well: Do not send any message that you would be uncomfortable having your mother—or, in this case, a coworker or your employer—read.
To learn more about your right to privacy on the job, get Your Rights in the Workplace, by Barbara Kate Repa (Nolo).