Most employers have some sort of process for monitoring employee email or phone communications and a corresponding electronic resources policy to make sure that the employees know it. These policies are usually designed to protect employers from privacy claims by making sure that employees do not have a reasonable expectation of privacy in their workplace communications.

If properly worded, such policies also might provide employers with protection from substantial civil liability under the Federal Wiretap Act. Historically, the Federal Wiretap Act has not been a concern for employers reviewing emails or messages stored on the employer’s equipment servers , because the act does not apply to stored communications. Technology, however, changes, and many information technology departments are now capturing employee communications with methods that do fall within the Federal Wiretap Act, such as real-time interception of calls or auto-forwarding of emails. These advances open the employer to potential liability unless the employee has consented to the interception.

Unfortunately, not all electronic resource policies provide that consent. For example, a policy reserving the right to monitor “phone or email messages stored on its voicemail or email systems” was held not to create consent to listen to telephone conversations as they occurred. Similarly, a policy presented once at the beginning of employment may not suffice to establish consent to email interception five years later.

Employers should update their electronic resources policy regularly to cover changes in the technology used to capture employee communications. Before you begin real-time monitoring, auto-forwarding, or other monitoring methods that go beyond the data already stored on your equipment, make sure that your electronic resource policy covers your method of interception and that your employees have acknowledged what you will be doing to monitor their communications. Accurately informing your employees of the type of monitoring used and getting annual acknowledgments will help protect you from unexpected claims of unlawful interceptions under the Federal Wiretap Act