Invasion of Privacy
In general, employees have no right of privacy in the contents of their employer-owned computers. Although there are limited privacy protections that apply to voice communications over company-owned phone equipment, those protections do not extend to email and other electronic communications. In order to have a right of privacy, there must be an expectation of privacy on the part of the party seeking to assert that privacy right.
Many companies have explicit policies or employment agreements that provide that the company owns any communications that are prepared or sent on company-owned equipment and reserves the right to monitor, access, use, and disclose the contents of those communications. Some companies make it clear to their employees that email prepared and sent on company equipment constitutes business records that may be subpoenaed by a court of law. Such policies serve to greatly minimize, if not completely eliminate, any expectation of privacy an employee has in the contents of an employer-supplied computer.
Employees may not have privacy rights in email sent on company-owned equipment even if the company makes assurances that all email communications are confidential and privileged. A wrongful discharge case against a Pennsylvania company that made such assurances was recently dismissed after an employee made inappropriate and unprofessional comments to his supervisor. The court found that an employee could have no expectation of privacy in communications made on a company email system to his supervisor.
In addition to email monitoring, employers can use the computers that their employees use to monitor employee activities. For employees whose primary work is done on a computer, an employer is allowed to use software to count keystrokes done on the computer as a measure of productivity or to determine when a computer is idle. Employers can also monitor an employee’s Internet use.
Employers are generally justified in monitoring Internet use by employees on employer-supplied equipment because of potential liabilities that the employer could face from such use. Employers can be held both civilly and criminally liable for illegal acts of their employees. Such liabilities can arise from employees sending obscene or pornographic material downloaded from the Internet to fellow employees, whether it constitutes a criminal act or sexual harassment, defamatory communications made in the scope of employment, or infringement of copyright or other intellectual property rights from inappropriate copying of material on the Internet. In addition, employers may need to ensure that their own intellectual property is not improperly disseminated on the Internet.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.
