The Common Law

According to www.ishouldbeworking.com, a Web site dedicated to loafing employees (fully equipped with a panic button employees can click when their boss enters their office), more than 6.1 million employees have goofed off on their Web site since its launch in 1999. It is a simple fact that employees with access to the Internet or e-mail do not use these services solely for work purposes. Before you send that e-mail complaining about your lousy boss, you had better think about who may be reading it.

Why would an employer read their employees' e-mails? Despite any voyeuristic interest into their employees' private affairs, there are several legitimate reasons an employer may want the inside scoop:

1) E-mail communications pose a security risk for the employer's server when employees download files, providing access for viruses and spyware installation, and can overload the employer's server.

2) Lawsuits! When an employer is sued, his adversary may have access to his employees' e-mails – even those that have been deleted but can be re-created from a backup drive. Deleting e-mails does not mean that an employer or someone else can never again have access to them.

3) Employers have an interest in preventing workplace harassment, which often is accompanied by undesirable e-mails.

4) And finally, but not the least important, employers pay good money for their employees to work – not to chat with their buddies over e-mail.

In a survey by Quicktake, it was reported that 42% of employers monitor their employees' e-mails. The fact is that in general, monitoring employees' e-mails has been found not to be a violation of the employees' privacy. Under federal law, it is not unlawful for an employer to intercept an e-mail where one of the parties to the communication has consented. In Texas, the only case discussing an employee's e-mail privacy held that an employer did not violate an employee's privacy rights by reading e-mails sent over the employer's network.

Read next week's column, when we will discuss in more detail an employee's limited (if any) right to privacy in e-mails sent over their employer's e-mail system.