The Common Law

As last week's column discussed, a recent survey reported that 42% of employers monitor their employees' e-mails. So before hitting send on the e-mail that criticizes the boss and, if read, will send a promising career into a tailspin, curious employees will be interested to know what the law says about employers that 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. Remember all those papers you had to sign when you started your job? It is highly likely that one of them was an internet and e-mail usage policy. If the employer has obtained consent to intercept e-mails through an e-mail usage policy, federal law does not provide any protection to the employee. Additionally, if the e-mail user is downloading files that are causing harmful interference to the system, an employer may intercept that e-mail for the purpose of identifying the cause of the interference. What does that mean? Those jokes that your buddies send you containing large files or pictures may get you in trouble.

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. In that case, even though the employee put his personal e-mails in a special folder with two separate passwords for access, the court held that the employee did not have a reasonable expectation of privacy in his e-mails.

This area of the law is still developing, but as it stands now, an employee has a very limited right to privacy, if any, in e-mails sent over their employer's e-mail system. Moreover, even if your employer isn't reading your e-mails, you should be aware that others may be. E-mails can be intercepted by hackers and read anywhere in transit from your computer to the recipient. The simple solution: If you have a personal message intended for one person's eye's only, don't put it in an e-mail.