ELECTRONIC MONITORING IN THE WORKPLACE

A Research Guide to the Laws,Articles, and Current Events Regarding the Monitoring of Employees' Email  Correspondence and Internet Usage

 

By: Robert Taichman

J.D. Candidate/Brooklyn Law School

06/2008

Introduction

 Secondary Sources

 

 

INTRODUCTION:

The nature of the workplace has irrefutably changed with the advent of technological advancements. No technological advancement has altered the office environment more than the internet and the rise of emailing as the predominant form of employee communication. In 2001 it was estimated that approximately 40 million Americans had internet and/or email acces at work, a number which has undeniably risen since then. Andrew Schulman, The Extent of Systematic Monitoring of Employee E-mail and Internet Use, Privacy Foundation July 9, 2001.

 With the rise in internet usage serious issues in the workplace have arisen for both the employee and employer. From the employer's persepective the internet and emailing is necessary to conduct business today and compete on the global market. However, internet usage and emailing by employees can have serious consequences on the employees' productivity. As a result, many employers have begun to monitor their employee's internet and email usage. From the employee's perspective, with the growing number of hours they are expected to be at work, emailing has become a necessary mode of communication.  With the rise of the monitoring of employees' email and internet usage grave privacy issues have begun to arise.

This research guide will focus on the legality of an employer monitoring an employee's email and internet usage, by examining both primary and secondary sources.

Currently there are very few, if any, laws regulating employee monitoring. While the Fourth Amendment does prohibit unreasonable searches and seizures, it only regulates those conducted by the government. In other words, the Fourth Amendment does not prohibit searches or seizures by private companies or persons. The most relevant federal law, the 1986 Electronic Communications Privacy Act, prohibits unauthorized interception of various electronic communications, including e-mail. However, the law exempts service providers from its provisions, which is commonly interpreted to include employers who provide e-mail and Net access.

There are however a small number of cases which have been decided in the Federal Jurisdiction on the issue of electronic monitoring in the workplace, most of which come out in favor of the employer. One of the leading cases in this field is Smyth v. Pillsbury, 914 F. Supp. 97 (E.D. Pa., 1996).In this case, the employee's termination was upheld by the court, even though the company had a policy of allowing e-mail use for personal communications. The employee had sent messages to co-workers that were deemed highly inappropriate for workplace communications

 Because of the dearth of case law on this issue, the guide will not focus on one specific jurisdiction, but rather the focus will be on federal case law.