In attempting to strike a balance between employee privacy concerns and the legitimate business needs of employers, the scope of the employer’s potential liability with respect to its electronic mail (e-mail) and voice mail systems must be considered. Such issues include:

1. E-mail is subject to discovery in a lawsuit. Like other employer records subject to subpoena, e-mail is discoverable. This is significant since e-mail is often written informally and is retrievable long after an employee believes he or she has erased it. For a good article on this subject, we suggest you read Linda Tucci’s article on E-discovery Rules.

2. Tort liability. The rapid exchange of information facilitated by electronic communication subjects the employer to greater potential liability for tortious acts involving communication. For example, as peresonnel files may contain potentially defamatory internal communications, the potential for discovery and transmittal of such communications could expose employers to liability on both defamation and negligence grounds.

3. Harassment and discrimination. E-mail and voice mail messages increasingly are being used to support employee claims of discrimination.

4. Union activities. The rapid communication among employees that e-mail promotes is also a great use to unions attempting to organize or communicate with employees.

5. Property loss and industrial espionage. Potentially the single greatest threat to employers in the electronic workplace is that of property loss. Industrial espionage and sabotage pose very real threats to employers.

Here are some guidelines employers may wish to follow.

Given the uncertainty concerning the status of e-mail and voice mail and the availabilty of the various exceptions under the Electronic Communications Privacy Act (ECPA), employers should obtain the express consent of their employees both to monitor communications and access stored communications. This can be best accomplished by requiring employees to sign written consent forms.

Alternatively, employers should take steps to establish the employees have impliedly consented to the monitoring and accessing of communications.

To accomplish this, the employer should adopt a uniform policy designed to lower the expectations of privacy by employers.

Information courtesy of Labor and Employment Law Blog