Electronic Monitoring

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iBRIEF / eCommerce 7/25/2001

Cite as 2001 Duke L. & Tech. Rev. 0026

MONITORING EMPLOYEE E-MAIL: EFFICIENT WORKPLACES VS. EMPLOYEE PRIVACY Employer monitoring of electronic mail constitutes an emerging area of the law that is clearly unsettled at this point in time. This iBrief demonstrates that the privacy rights of non public-sector employees are relatively unprotected by the federal and state constitutions, broad judicial interpretations of enacted privacy legislation favor legitimate employer-monitoring practices, and many of the elements of common law claims are difficult for employees to prove. INTRODUCTION ¶1 Employee use of electronic mail (e-mail) during business hours is a common characteristic of the 21st century American workplace. According to a recent study, over 130 million workers are currently flooding recipients with 2.8 billion e-mail messages each day.1 Employers provide e-mail services to their employees as an efficient means of facilitating both intra-company communication and communication with the outside client base.2 E-mail serves to increase the efficiency of today's workplace because it is inexpensive to provide, simple to install and easy to use.3 E-mail usage also dramatically decreases the use of office-related, paper-based correspondence. However, despite these efficiencies, this technological advancement is also creating collateral problems concerning issues of employee privacy that today's legal environment appears unprepared to solve. This inadequacy in the law is primarily based on the fact that many employees do not know the extent of their privacy rights regarding their company-provided e-mail accounts. In fact, many employees operate under the false assumption that personal e-mail messages sent from work are protected from their employer's scrutiny. ¶2 It is interesting to note that employee privacy issues frequently arise in many areas of the work environment other than e-mail monitoring. Employers often monitor employee telephone calls and some companies also record the time each employee spends on bathroom breaks. One employer even "places a device in employees' chairs to measure worker 'wiggling,' presumably because more wiggling means less working."4 These attempts at monitoring employee behavior, as silly as some may appear, represent aspects of a legitimate struggle

between the employer's ability to conduct its business operations and the employees' privacy rights, between worker efficiency and worker sanity and between technological advancement and current laws operating behind the technological curve. ¶3 This struggle is serious and its boundaries are rapidly moving into the arena of workplace e-mail. The problem with this advancement is that neither the United States Constitution, the respective state constitutions nor any federal or state statutes provide a clear concept defining the extent of employee privacy rights as they relate to work-related e-mail accounts. The common law, primarily via the tort of interference with seclusion, provides the most common means by which employees are attempting to define their privacy rights. However, it is often difficult for employees to meet all four of its elements. This iBrief examines the current legal framework encompassing this area and concludes with suggestions both employers and employees can use to protect themselves until the laws dealing with e-mail monitoring become more settled. THE CURRENT STATE OF E-MAIL MONITORING ¶4 In the "pre-Internet world, companies tolerated use of office telephones and radios as ways to satisfy employee needs. The standard for when these resources were being abused and cutting into productivity, in what amounts to employee theft of wages, was intentionally left fuzzy."5 However, with today's businesses constantly attempting to increase employee efficiency, employers are becoming more concerned with improving their employees' hourly productivity and are using the most current technology...
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