Whether you work for a corporation, a nonprofit organization, a public relations firm, or a government agency, chances are high your employer has--or will soon acquire--an electronic mail (e-mail) system. In 1991, e-mail users were estimated at 12 million persons, and that number continues to increase.(1) E-mail is popular for good reason: it allows workers to communicate quickly and efficiently between computer terminals, replacing both phone calls and paper mail.
But life after e-mail is not all roses, as several employers have recently discovered. Problems can arise when employees view their e-mail messages as private property, sacrosanct from employer inspection. Because workers access their e-mail via secret passwords, users may incorrectly assume that their messages are truly private. This assumption can lead employees to use e-mail for messages about off-hours activities, or to express complaints about supervisors, co-workers or company policies. Employers, on the other hand, may see the e-mail system as company property to be used only for appropriate job-related communications. Employers may decide that legitimate business reasons exist to monitor their employees' e-mail, including the need to ensure that the system is being used solely for business purposes.
Do employers have the legal right to read their employees' e-mail? At present, no court has addressed the issue. However, wrongful termination cases are pending in California and Washington that may determine whether employees, at least in those states, have a legal cause of action for employer intrusion into their e-mail messages.(2) Meanwhile, activist groups including Computer Professionals for Social Responsibility, Communications Workers of America, 9to5, and the National Association of Working Women have come out against e-mail monitoring.(3)
What does the e-mail privacy debate mean to public relations practitioners? The short answer is that PR must be aware of and sensitive to employee privacy concerns, a topic that has been called "the workplace issue of the 1990s."(4) By counseling with management to establish an e-mail policy, PR can work to prevent lawsuits and improve employee morale. This article will address the legal issues presented by e-mail monitoring, and recommend a pragmatic, proactive course of action necessary for successful employee relations.
E-Mail Monitoring: A Legal Analysis
When setting up Epson America's e-mail system, e-mail administrator Alana Shoars reassured some 700 Epson employees that their e-mail would be private. Shoars alleges she later discovered that an Epson supervisor was reading all employee e-mail originating from outside the company. Shoars complained about the monitoring and was fired. In 1990, she sued Epson for invasion of privacy on behalf of herself and other Epson employees. Epson has denied any wrongdoing and maintains that Shoars was fired for good cause. However, Epson has since notified employees that it cannot guarantee e-mail privacy, citing in part its need to protect against computer crime.(5)
As recently as ten years ago, employee lawsuits asserting privacy claims against employers, such as the suits filed against Epson, were rare. In the past, courts have applied the general rule that employers have the right to monitor their workers while they are on the job.(6) But in today's high tech workplace, employers have new and potentially more intrusive means of observing employees. The prevalence of electronic performance monitoring, including e-mail interception, has created a growing concern among legal scholars that present laws do not sufficiently protect employee privacy rights.(7) Three sources of law may be used by employees to contest an employer's right to engage in e-mail monitoring: federal and state statutes; federal and state constitutional provisions; and the common law. ...