Can Your Boss Read Your Email?
When Harvard professors found out that the school's administration searched employee emails to find out who leaked confidential information to the press, it brought a major employment law issue to the public's attention: Is your email private? Harvard faculty members were outraged, calling the administration's action "creepy," "disgraceful" and "dishonorable." The outrage, however, was sparked by the recognition that these employees were faculty, and should have been notified in advance of the search. Harvard faculty apparently have rights that mere Harvard staff do not.
Where is the outrage on behalf of the students who will likely end up at workplaces that have little or no privacy? Where is the outrage at the fact that anyone's employer can search their private email? Are these professors so sheltered in their ivory towers that they don't realize what's happening to real people in the workplace?
So can your boss read your email? The answer is, mostly, yes. Here's what you need to know about the privacy of your email at work:
Work email: If you are emailing to and from your work email address, then that address is probably your employer's property, not yours. Odds are, your employer put some sort of notice and consent to monitoring your email in your handbook, contract, or even your job application. While the Electronic Communications Privacy Act provides some protection, there are too many loopholes. Don't open email attachments from people you don't know, or from anyone who might send you something inappropriate at work. Your employer can and probably will find it when they start looking for a reason to fire you. Never email your lawyer from your work email; you might waive attorney-client privilege if you do.
Personal email on work devices: If you open your personal email on a company-owned computer, phone or other device, those emails may sit on your company's server indefinitely. Some companies even use key-logging programs that may capture every keystroke you use, including passwords. Some employees leave their work email open on their company laptops when they go home. If they are fired before they close it, the company will be able to read everything. Other employees have applications that automatically fill in passwords. If they use those on work devices, the company will have access to their personal emails.
So employers do have access to emails that you access from their devices. Can they legally read your personal email once they have access?
The Stored Communications Act says:
Except as provided in subsection (c) of this section whoever
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished [with criminal and/or civil penalties].
This law applies to emails stored on a third party server, such as your AOL account, but not emails stored on the company server. It applies to emails you haven't opened, not to ones you've already read.
In a recent case, a court found that an employer which accessed an employee's email after the employee turned her phone in (and thought she deleted the email account from the device) may well have violated the Stored Communications Act in accessing emails that the employee hadn't opened. In another case, a court awarded punitive damages to an employee whose email account was accessed by the company (but they didn't say in the opinion how the email was accessed).
Passwords: If your employer gains access to your passwords through keylogging or other computer monitoring, and if they use those passwords to monitor your personal email or social media, they might be violating either the Electronic Communications Privacy Act or the Stored Communications Act.
Personal emails on home computer: If you do company work on your home computer, beware. Some companies require software to be installed on your home device to allow you to access certain employer information. However, that software may give them access to your personal email. In a recent case, an employer who used such a program to access an employee's personal emails was found guilty of Stored Communications Act violations.
Another law that might protect you from this kind of intrusion is the Computer Fraud and Abuse Act, which prohibits access to "protected computers" that exceeds the access that was granted by the owner. This law has been used harshly against employees who supposedly exceeded their employer's authority to access company information, but I haven't seen any cases applying it to snoopy employers who hack an employee's personal computer yet. It should apply both ways. Will it? Time will tell.
Discussing working conditions: The National Labor Relations Act protects most non-supervisory employees of non-government employees from being disciplined for discussing working conditions by email. That means you can compare wages, discuss benefits, and even send emails mocking or protesting working conditions.
Other legal protections: Some states have protections under tort law, such as "intrusion upon seclusion" or "invasion of privacy." However, most courts find that employees have little or no expectation of privacy in the workplace. Your best protection may be to include privacy language in your employment contract if you're lucky enough to have leverage to negotiate one. Your union might also have language protecting your privacy in its collective bargaining agreement with your employer.
Because the laws vary from state to state, if you think your employer has been reading your email, check with an employment lawyer in your state about your rights. However, I suggest being cautious. Don't check or send personal email on your work computer or company-owned devices. Use your own cellphone and laptop if you want to keep your personal business private.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues that you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs. While I can't answer every question here, your question might be featured in one of my columns, or an upcoming live video chat.
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Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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