The subject matter of this page is troubling for both employers and employees. Today, many employees work from home more often than in the office. What guidelines exist to protect private communications at home vs. the employers’ interest in monitoring employee conduct and communications that may damage the employer’s reputation.
The New Jersey Supreme Court has partially addressed the extent to which employers can monitor employee email and internet use. In one case, it held that in order for an employer to monitor employee emails and internet use during the work day or at the work place, it must give advance notice to the employee(s) that email and internet use is strictly limited to business purposes, and that all communications are considered the property of the employer and therefore subject to review. This advance notice to the employee is a significant factor in determining the employee’s legitimate expectation of privacy and the validity of the employer’s actions.
The Supreme Court limited its decision to whether the employee had a reasonable expectation of privacy for emails that she exchanged with her attorneys. The court listed several important factors to consider whether an employee has a reasonable expectation of privacy in email communications with his or her lawyer while using the employer’s computer including (1) whether the email was sent from a company email system rather than a personal, web-based account; (2) whether there was a clear company policy banning personal emails; (3) the location of the company’s computer; (4) whether the employee took other steps to protect the privacy of the emails and shield them from her employer; (5) whether the emails were illegal or inappropriate material which might harm the company in some way; and (6) whether the emails included a notice that they were personal, confidential, and may be attorney-client communications.
In its decision, the court noted that its holding was limited to the facts of the case and cautioned against interpreting its decision to mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy.
While employers have a right to monitor an employee’s use of email and the internet, they also have a duty to investigate and take action where there is reasonable cause for suspicion of activity which can cause harm to others. Where an employer has communicated a clear policy regarding the company’s monitoring of internet usage and email, the employer has a duty to either terminate the employee or report the suspicious activity to law enforcement authorities.
If you would like to speak to us personally about your employment law matter, call Fredrick P. Niemann toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com. He or a member of the office will be happy to speak and meet with you to address your particular case.
Fredrick P. Niemann Esq.