As electronic communication technology and use continue to grow, public policy and case law governing employees’ use of e-mail and the Internet at work are also developing.

In this rapidly changing environment, it is increasingly important that employers and employees understand what rights each has regarding e-mails and Internet use at work.

Monitoring E-Mail

The Electronic Communications Privacy Act of 1986 (ECPA) regulates the monitoring of electronic communications, including e-mail. The ECPA provides criminal and civil penalties against any person who intentionally intercepts an electronic communication.

The ECPA includes several exceptions which allow monitoring, including exceptions for monitoring done in the “ordinary course of business” by the provider of the communication service and in situations in which one of the parties to the communication gives prior consent. The statute also allows the provider of the service to record the fact that a communication was made in order to protect the provider from fraudulent, unlawful, or abusive use of such services.

Finally, the disclosure of stored electronic communications is permitted with the consent of one party to the communication. It is also permitted when incident to the rendition of the service or to the protection of the rights or property of the provider of that service.

The federal courts’ interpretations of the applicability of the ECPA to private employers monitoring their employees’ e-mail have varied. The decisions have generally balanced the employer’s legitimate business needs with employee’s privacy expectations.

In a Pennsylvania case, an employee was discharged for sending “inappropriate and unprofessional comments” via e-mail. The employer had assured its employees that all e-mail communications would remain confidential and privileged and would not be intercepted and used as the basis for discipline or termination. Nonetheless, the plaintiff’s employer intercepted his e-mails and used them as the basis for the termination of his employment. The employee sued for wrongful discharge and claimed the employer violated public policy by terminating him in violation of his common law right to privacy. The court rejected the employee’s claim, stating:

[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system, notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the unprofessional comments to a second person . . . over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost.1

In addition to the ECPA, employers must be aware of Washington’s Privacy Act which provides that it is unlawful to record any:

[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals . . . [using] any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.2

Washington’s appellate courts have not yet determined the application of this statute to e-mails at work. However, in State v. Townsend 3 the Supreme Court found that e-mails are private, recorded communications within the meaning of the Act. Analogizing to leaving a recording on an answering machine, the Court found that “a communicating party [who sends an e-mail] will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded.”4

With this ruling, it is likely that an e-mail sent by an employee to a supervisor, where the supervisor prints and uses that e-mail for an employment decision, will not amount to protected communication for the employee. However, where e-mail is monitored by the employer but there is no policy in place notifying the employee that all e-mail is monitored, the courts may find monitoring to be a violation of Washington’s Privacy Act.

While some statutes regulate the ability to monitor e-mail activity, governmental employees and employers should be aware that other statutes may make their e-mails public records. In Tiberino v. Spokane County,5 the Court determined that e-mails of a county employee were “public records.” While exemptions to the Public Records Act exist that might prevent disclosure of e-mails to a third party, governmental employees and employers should be aware that their e-mails are public records and may potentially be subject to disclosure.

Monitoring Internet Use
While the courts have yet to establish a clear set of standards for Internet monitoring, employer policies regarding Internet usage are still evolving and remain varied. Some companies have established policies regarding employee use of the Internet, informing employees that they may be monitored and expressly barring the downloading of offensive material. Other companies have no official policy and actively encourage employees to go online as much as possible to gain insight about competitors and customers.

Many companies are increasing their use of the Internet to shortcut more traditional sources of information, such as print publications and research services. Many employees also use the Internet for a multitude of non work-related purposes.

While some companies may accept or tolerate some personal uses, employee misuse of employer-provided Internet access has gone beyond the downloading of games and reading of news reports. Employers are justifiably concerned about easy access to pornography and other sexually explicit material. Employees who view sexually explicit Web sites, use Playboy screen savers, post lewd jokes on online company bulletin boards, or engage in other inappropriate conduct could create a “hostile working environment” which could become the basis of a sexual harassment claim.

The threat of a hostile work environment claim is not the only danger for employers. The Telecommunications Act of 1996 imposes criminal liability for transmitting “indecent” materials over online and computer networks to which minors have access. Although the access of minors to the Internet may not be of concern to most employers, and while this law limits the liability of companies whose employees illegally spread obscene material without management’s knowledge, employers who employ minors should be even more diligent in their supervision of employee Internet use.

What Should You Do?
For employees, it is wise to remember that employee rights, as they relate to e-mails and use of the Internet at work, are limited. If a company does not have an established policy regarding e-mail use, then there are only limited circumstances, as detailed above, in which an employer or, even possibly, the public, may review employee e-mails. Because exceptions do exist, employees should not view questionable material on the Internet or e-mail anything they would not want their employer to see. If an employer does have a policy, employees should carefully review the policy so that they may understand and comply with its requirements.

The challenge for employers is much more complex. As e-mail usage and other forms of electronic communication continue to increase, companies must be prepared for the various issues raised by these innovations. Companies should implement general electronic communications policies to establish appropriate and inappropriate uses of employer-provided computers, telephones, cell phones, Internet access, and other electronic resources.

Employers should institute policies to clarify employees’ expectations regarding property or privacy rights when using the employer’s electronic communications system. In particular, employers should inform employees that all employer-provided computers and telephones are the property of the employer and may be monitored for compliance with internal policy and the law. The policy should also contain prohibitions against sending offensive or harassing e-mail messages and cross reference the employer’s harassment-prevention policy. Further, employers should assess whether computer system “filtering devices” are warranted to block unauthorized e-mail messages.

When drafting policies, employers should keep in mind that restricting employee use of the Internet and limiting e-mail to business use only may run afoul of union employee rights under the National Labor Relations Act. The National Labor Relations Board has taken the position that blanket prohibitions of the use of such electronic communication systems except solely for business purposes may violate the solicitation and distribution rights provided under the NLRA. If an employer is considering drafting such a policy, it would be wise to consult labor counsel.

Conclusion
E-mail and Internet law will continue to develop as the technology develops and our reliance on that technology increases. Maintaining a current awareness of those changes is critical to both employers and employees because of the rapidly changing landscape of the law governing electronic communications. As part of an overall preventative strategy to avoid workplace disputes, employers should continually develop and review policies affecting these communications so that employers’ and employees’ rights and responsibilities remain clear. n