You Can Look, but Don’t Touch: Reviewing Employees’ Personal E-mails

It is no secret that employees regularly use e-mail at work for a wide array of reasons. Employers that believe they have a right to access an employee’s personal e-mail simply because it was accessed by the employee at work are in for a rude awakening. Any employer considering reviewing an employee’s personal e-mail must be aware of the Stored Communications Act (SCA).

What is the SCA?

Employers have a legitimate interest in monitoring workplace communications that involve their business. For example, a salesperson may have started a company that directly competes with his employer and is targeting the employer’s current and potential customers. To protect themselves, employers are increasingly relying on handbooks that contain e-mail privacy policies that advise employees that they have no expectation of privacy in e-mails sent over employer-owned servers and using employer-owned computers. However, an interesting scenario arises when an employer does not provide the e-mail service. What if an employee uses a personal G-mail or Hotmail account to harm the employer or steal the employer’s property?

The SCA makes it illegal to access, without authorization, a facility through which an electronic communication service is provided and to intentionally access an electronic communication while it is in electronic storage. In the employment context, the SCA makes it unlawful for an employer to review an employee’s private e-mails without authorization. A person harmed by a violation of the SCA may file a private civil lawsuit against the perpetrator and recover compensatory damages, punitive damages, and reasonable attorneys’ fees.

What have courts said?

Only a handful of courts have interpreted the SCA, and the decisions have provided interesting and somewhat inconsistent results. In a New York case, an employer reviewed a former employee’s Hotmail e-mails without authorization after he was terminated. The employee filed suit under the SCA. The employer argued that reviewing the employee’s e-mails did not violate the SCA because he had implicitly authorized the review by storing his username and password on the employer’s computer system and forgetting to remove the account from an employer-provided phone before returning it. The court rejected that contention, finding it was equivalent to arguing that the employee implicitly authorized the employer to enter his home without his knowledge by leaving his house keys on the reception desk at the office.

In another case filed in Ohio, a terminated employee returned her company-issued BlackBerry®, mistakenly believing she had deleted her personal e-mail account. She later discovered that her former supervisor accessed and read more than 48,000 of her personal e-mails during an 18-month period following her termination. Not surprisingly, she was upset and sued her former supervisor and employer for violations of the SCA, among other things. The court dismissed the SCA claims involving e-mails the employee had opened and read prior to the employer reviewing them. The court reasoned that the term “electronic storage” is narrowly defined under the SCA and that previously opened e-mails do not meet the definition.

Bottom line

If you wish to review employee communications that occur at work or are made on employer-owned equipment (e.g., desktops, laptops, and cell phones), have a policy that specifically provides for the right to monitor and review all work-related communications made by employees on such devices. The SCA arguably does not apply to e-mails in a personal account that have already been viewed by an employee because those e- mails are not considered to be in “electronic storage.” However, case law on the SCA is scarce, and other courts may interpret the SCA’s requirements differently. Given the uncertainty in this area, proceed with caution in reviewing employees’ personal e-mails, even if you suspect wrongdoing. If you believe an employee is competing with your company or is engaging in other misconduct, consult with counsel at an early stage to determine the best method to stop the misconduct and gather necessary evidence.

This article, slightly modified to note recent updates, was featured in the January 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.