Business Perspectives

December 13, 2012

Think twice when accessing e-mail at workplace

It is easy to forget the power of “send.”

It is easy to forget the power of “send.”

In a world where Twitter and Facebook grab headlines, it’s easy for e-mail to fade quietly into the background of daily life. A reliable workhorse of office communication, e-mail has become such an ordinary part of a work routine that the dangers that come with it are easy to overlook.

A message written in the privacy of an office or cubicle can seem discreet and confidential, but that can change the moment the message is sent. The intent might be to whisper in someone’s ear, but others could be listening, even weeks or months later.

A pair of high-profile government scandals recently served as reminders that e-mails can still bite. A complaint of harassing e-mail messages led to an FBI investigation of Gen. David Petraeus and his resignation as director of the CIA. An investigation centering on e-mails also iced the nomination of Gen. John Allen to head the U.S. European Command.

While the e-mail messages in these cases were investigated by the FBI as a matter of national security, anyone’s messages may not be as private as expected.

That’s especially true at the office, where many employers have Internet or computer use policies that make it clear that the company’s equipment is to be used only for job-related purposes.

In addition to prohibiting employees from downloading movies and making it clear that certain websites are off limits, these policies commonly govern the use of company-provided e-mail. A company policy may include provisions forbidding employees from spamming other workers with a message about a school fundraiser, for example. Such policies often clarify that a company-provided e-mail program, with messages stored on company servers, is for business purposes only, and that illegal, harassing, or other unwelcome use of e-mail could lead to disciplinary action.

To make sure employees are following the rules, and to take away an expectation of privacy, company policies may also state that the employer has the right to monitor computer usage at all times. This includes e-mail messages sent from an employee’s work account.

Court cases over the years provide guidance to employers and employees.

Courts have upheld an employer’s right to read e-mails sent by employees when workers use employer-owned computers and e-mail programs. One case heard by a California appeals court involved a worker who sued her boss for sexual harassment, retaliation, and wrongful termination. She argued that e-mails sent to her attorney should be confidential.

The court, however, found that the e-mails were not protected by attorney-client privilege because they were sent from a company e-mail account. The employee had been advised that the employer could access the e-mails, and the court noted that sending e-mails from her work account was “akin to consulting her attorney in one of the employer’s conference rooms, in a loud voice, with the door open.”

Employees do have more privacy when it comes to personal e-mail accounts. Employers do not have the same degree of access to personal, password-protected e-mail accounts used by their employees, even if workers access these accounts on company time and use company-owned property.

This point was solidified in a case before the New Jersey Supreme Court, which found that an employee had a reasonable expectation of privacy in e-mails sent through a personal e-mail account from a company laptop computer. The worker had filed a discrimination lawsuit against her former employer, and the employer had a policy that prohibited certain e-mail activities.

The court found that the company’s computer use policy did not extend to personal, password-protected, Web-based e-mail accounts, however. It held that e-mails sent from the former employee’s personal account were protected by attorney-client privilege even though she used the company’s laptop computer to send them.

This bit of leeway does not mean, however, that employees can spend as much time as they like sending personal e-mails from their Yahoo or Google accounts. Employer policies may make it clear that work time is to be spent doing work.

An employer might not be able to read messages sent from a private e-mail account, but it can evaluate how the company computer is being used and how employees are spending their time. This can include tracking which sites are visited and how much time is spent visiting those sites. Sending and reading personal e-mail on work time could be seen as a misuse of work time and may result in an employee being disciplined or fired for poor performance.

While employers typically do not have access to the content of personal e-mails sent from a private account, employers may need to get involved if they learn that an employee is sending harassing message to coworkers, either from work e-mail or a private account.

Even if the e-mail is sent from the employee’s personal computer on his or her own time, a threatening message sent to coworkers could be considered an incident of workplace violence.

While harassing e-mails between coworkers might be relatively rare, the fact they can exist offers some insight into why employers can have the right to have monitor worker e-mail.

Employers should take action if they become aware of improper behavior, and workers need to realize that the privacy of company e-mails and unlimited computer usage is not to be expected.

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