E-mail and Employee Privacy

There are three main laws governing employee privacy:

1. the U.S. Constitution and Section 1983 of the Civil Rights Act,


2. the Electronic Communications Privacy Act (ECPA), and


3. federal court decisions

It has been established that, in many instances, employees have the right to be free from the interception of e-mail while it is being transmitted. However, there is no such right to being free from having one's e-mail stored and accessed when the employer is the provider of the communications system (privacy through the Fourth Amendment and the ECPA does not stand in this type of instance). According to two cases, an employer who wants to monitor employee e-mail can do so once that e-mail has been stored on computer disk or some other secondary storage medium. Examining stored e-mail requires only that one have access to the storage media, and most employers who own the e-mail or communications system will have that kind of access. Therefore, employee e-mail may be practically viewed by recovering it from storage.

This type of "no-privacy protection" has also been extended to independent contractors when the contractor uses the same e-mail system as the business owner's employees and that system does not provide e-mail to the community at large.

When e-mail is stored on a private network that the employer does not own, the situation is different, as ruled by two separate cases. The employee has a right to privacy in e-mail messages that reside on a network that does not belong to his/her employer.

Employees, in turn, may request disclosure of their employer's records (including e-mail); however, it is very important to be timely in this sort of pursuit. In one court case, the court seemed to blame the employee for waiting to file a state lawsuit (two years) to compel disclosure of the records. Employment litigation can often be very expensive for an employee to pursue, and failing to act promptly may leave the employee little or no way of pursuing his/her legal rights. As in the case cited, the e-mail in question had long since been erased from the system and placed in archives that would take a great deal of time and money to reconstruct, if at all.

Keep in mind that state laws on privacy vary from state to state.