Employer's Rights to Monitor Employees' Email & Internet Use

Through the Internet, people can escape from their humdrum realities and explore faraway places, flirt and chat with friends. They can access their bank accounts, pay their bills and go on shopping sprees. They can listen to music, watch movies and catch up on the latest news. Best of all, they can do it without ever leaving their chairs. Unfortunately, a lot of those chairs are filled by people who are being paid to do something else. Studies reveal that 30 to 40 percent of workplace Internet use is not job related, while 70 percent of all porn traffic occurs between 9 a.m. and 5 p.m. Faced with those statistics, increasingly employers are considering monitoring their workers’ Internet and email activity.

Legally, an employer has every right to monitor employees’ Internet activity. Although the Fourth Amendment protects U.S. citizens from unreasonable searches and seizures of goods and information, a number of courts have dismissed it as an argument against workplace Internet monitoring on the grounds that it doesn’t apply to the private sector. The Electronic Communications Privacy Act of 1986 prohibits the interception of internationally transmitted data by “wire, radio, electromagnetic, photo-electric or photo-optical system,” but does not address the monitoring of Internet activity. Even a federal bill that sought to require employers to notify workers of Internet monitoring failed to come to a vote three times before it was finally abandoned in 1995. With no laws that state otherwise, in almost all cases, U.S. courts have upheld employers’ right to monitor all activity on company-owned computers and networks.

Generally, email that’s written and sent using a company-owned computer, especially when it’s done on the clock, is open to being monitored. This is true even when the email is sent from an employee’s personal account. Among the many U.S. court cases that upheld this employer right occurred in 1996 when a manager for Pillsbury, who’d been fired after his superiors read disparaging remarks he’d made about them in emails he’d sent, sued the company for wrongful termination on the grounds that his privacy rights had been violated. A Pennsylvania District Court judge dismissed the suit, noting the “company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its email system outweighs any privacy interest the employee may have.” An exception was made in 2010 when the New Jersey Supreme Court, citing attorney-client privilege, ruled an employer violated a worker’s rights by reading emails she’d sent to her lawyer from her personal account. However, a similar case was shot down in California because the employee had corresponded with his attorney through his company email account.

Opponents of Internet and email monitoring often question the morality of the practice. Some businesses have opted for employee privacy, fearing workers would be unhappy and less productive knowing they were under constant watch. However, there are reasons in support of Internet and email monitoring that go beyond catching an employee making a rude comment about the boss. Statistics reveal more than 75 percent of viruses – which, once downloaded to host computers can infect all the computers in their networks – come from online visits to malicious websites. Of business security breaches, 60 percent occur from within a company’s own computer network. In an escalating number of sexual harassment cases, courts have held employers responsible for offensive photographs and sexually suggestive emails that originated from employees.

Although the law largely supports monitoring employees’ Internet and email activity, your business would likely be better served if you kept your time spent in court to a minimum. Remove temptation by blocking access to social media, shopping, gaming and porn websites. Set up a business email account for your employees to remove any doubt about the legality of your monitoring it. If you come across an employee email that calls into question your right to review it, simply stop reading it and move on. Draw up an official company policy that states all employees’ computer activities are subject to monitoring. Even though numerous employers with no such policies in place have emerged victorious in privacy cases, it’s a good idea to have an extra layer of legal protection should you need it.