Under federal law, the Electronic Communications Privacy Act of 1986 generally protects employees from having their electronic communications intercepted. There are certain exceptions to this rule, which include:

  • the employee consents
  • the employer provides communications services and can monitor them
  • monitoring communications is a normal activity in that business

How Can an Employee Consent?

Most often an employer will ask for consent in the form of a Policy Statement stating that an employer will monitor e-mails to ensure that employees remain productive and do not engage in inappropriate or illegal communications. A well crafted policy statement will assure employees that monitoring will be for business purposes only and that the text of e-mails will only be read when absolutely necessary.

Courts have established very high standards for proving that an employee has consented to e-mail interception if no written agreement has been signed. The fact that an employee is aware that an employer has the capability of intercepting e-mail is not enough to establish consent. For employers, it is best to have an attorney draft a sensible policy statement to avoid any problems.

What Does It Mean For an Employer To Provide Communications Services?

This exception simply refers to providing a personal e-mail service through the company. Sending e-mail through a company’s servers gives an employer broad discretion to monitor and read e-mails. However, this is only for e-mails sent out through the company’s service provider and written by the employee. Incoming e-mail from outside the company is still protected by privacy rights, as are outoing messages sent through common e-mail carriers such as Google Gmail or MSN Hotmail.

When Is Monitoring Communications Considered a Normal Activity In Business?

Certain industries deal mainly in sensitive and confidential communications and many laws have been enacted to prevent corporate espionage or the leaking of information that could damage the company or enrich investors. These industries are mostly in medicine, advanced research, and financial investment firms. This is a dangerous shield to utilize because the court will determine whether or not it thinks monitoring e-mail is in the normal course of business, which can sometimes be very difficult to predict.

Do I Need an Attorney To Protect My E-mail Privacy Rights?

Reading e-mail can be harmful to everyone, causing shame or humiliation in employees or angering employers. Whether you are an employee or employer, it is important to consult an workplace attorney and ask for information regarding the rights of an employee to write e-mail while on the job.