Oct 3, 2011

Should You Monitor Your Employees’ Emails?

[caption id="attachment_393" align="alignright" width="383" caption="Should you monitor your employees?"]

[/caption] According to the “2007 Electronic Monitoring and Surveillance Survey,”¹ as many as 66 percent of employers monitor their employees’ use of the internet at work, while another 43 percent of employers monitor employees’ emails. Although some advocates for employee rights argue that monitoring infringes on employee privacy, the law says otherwise in most cases. Employers are permitted under the Electronic Communications Privacy Act of 1986² to monitor employees' emails if the employers provide the network on which the emails are sent or if the employers have a legitimate business purpose for the monitoring. Because most employers provide their employees with company email and because there are many legitimate business purposes for email monitoring, including ensuring productivity and making sure that no prohibited behaviors are occurring, monitoring of employees’ emails is generally accepted as a legal choice for employers to make. The question for many employers, though, is not whether monitoring is legal but is instead whether they should monitor employees. Some employers may be concerned about monitoring interfering with employee-employer relations. Others may be hesitant to incur the cost of monitoring.

Why monitor employee emails?

One of the most important reasons why employers may consider monitoring employees' emails is that a failure to monitor could, in some situations, lead to legal liability. Employers are held responsible for something called "hostile work environment" discrimination under the U.S. Supreme Court’s interpretation of Title VII and other civil rights legislation.³ This means that if employees are making the workplace uncomfortable or unpleasant on the basis of a worker’s race, gender, religion, or protected status, employers can be held responsible. Outside of potential liability for discrimination cases, employers may also monitor employees’ emails to identify:

Time theft in the form of employees spending large amounts of time sending personal emails at work
Employees revealing company or trade secrets in emails in violation of non-compete agreements
Employees making inappropriate comments to clients or customers or soliciting customers away from the firm in the event that the employees are planning to leave the company
Employees discussing prohibited or illegal behavior via email that employers could be held responsible for. With e-discovery becoming a major force in litigation and with the difficulty of ever permanently getting rid of electronically sent information, this reason for monitoring is equally as important as avoiding liability for harassment.

How about you? Have you considered monitoring your employees' emails, or do you already monitor them? How has it worked for you? Let us know in the comments below. For more information, visit: 1. American Management Association: “2007 Electronic Monitoring and Surveillance Survey” 2. Electronic Communications Privacy Act of 1986 3. “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors” The Small Business Authority cannot and does not give legal or tax advice and nothing contained in this article should be construed as such. Before taking any actions based on this or any other article published by The Small Business Authority, we strongly advise you to consult with an attorney and/or your tax professional.