Email Monitoring: Can Your Employer Read Your Messages?

    By Lisa Guerin, J.D. | Small Business

    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.

    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 survey conducted by the American Management Association (AMA) revealed that more than half of the responding companies monitor employee email, and one quarter 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.

    Email Isn't Private

    Courts have found that employers are generally free to read employee email messages, as long as there's a valid business purpose for doing so.

    Company email policies. These days, many companies reinforce these rights by adopting email policies telling employees that their email isn't private and that the company is monitoring email messages. Some companies also require employees to sign a form acknowledging that their email isn't private.

    Companies without email policies.  Even if your employer doesn't have an email policy, it still probably has the legal right to read employee email messages sent using its equipment and network.

    If the company takes steps to protect the privacy of email (by providing a system that allows messages to be designated "confidential" or creating a private password known only to the employee, for example) or if the company assures employees that email is private, you might have a stronger expectation of privacy in the messages covered by these rules and therefore stronger legal protection if the employer reads private emails.

    However, most courts to consider the issue have decided in favor of employers, particularly if the company has a compelling reason to read email (for example, to investigate a harassment claim). This includes the United States Supreme Court, which held in 2010 that the city of Ontario, California, could read private text messages a member of its SWAT team sent -- and received -- on his city-issued pager. 

    Are Your Emails Monitored?

    Legality aside, the truth is that many employers now routinely monitor email their employees send and receive. For example:

    • some email systems automatically copy all messages that pass through them
    • some create backup copies of new messages as they arrive, and
    • some employers that use "keylogger" software might even have copies of draft email messages that you never sent -- and we all know how bad these can be.

    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.

    Staying Out of Trouble

    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 with family and friends. 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).

    If you want some advice from a lawyer, Nolo's Lawyer Directory can help you find a local employment lawyer.

    Subscribe to our mailing list
    * indicates required
    Small Business Services