Yes – employers generally can monitor employee emails sent using an employer-provided account, but it’s best for employers to take certain steps to ensure that the monitoring is lawful.
Whether an employer can monitor employee emails sent using company email typically depends on whether the employee has a reasonable expectation of privacy in the emails. One of the leading cases on this subject is In re Asia Global Crossing, Ltd., in which the court developed a four-factor test for analyzing whether an employee’s emails are subject to a reasonable expectation of privacy. 322 B.R. 247 (S.D.N.Y. 2005). The court held that the four factors that should be considered are:
- Does the corporation maintain a policy banning personal or other objectionable use?
- Does the company monitor the use of employee’s computer or email?
- Do third parties have a right of access to the computer or emails?
- Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
The four factors make clear that an employer will have a much greater likelihood of defeating any alleged expectation of privacy in company emails if the company maintains a policy that clearly communicates to employees that the employer reserves the right to monitor and access employee emails and that employees should have no expectation of privacy in their use of company-provided email accounts.
Other potential options that employers can use to eliminate any ambiguity regarding the non-private nature of employee emails are: (i) requiring employees to sign an acknowledgement stating that they have no expectation of privacy in company emails; (ii) using on-screen warnings when an employee logs on to his or her computer warning that emails are subject to monitoring; or (iii) providing periodic trainings to employees that reinforce the company’s email-monitoring policy.
Takeaways: Employers who want to safeguard their right to access and monitor employee emails should make clear their intent and warn employees not to expect privacy in their emails, either by adopting an email monitoring policy or through other steps.