
Generally speaking, employers can search employees’ emails and internet use on employer-owned hardware and software. Many employers have published explicit policies warning employees that they should have no expectation of privacy in their electronic communication. It’s not common, however, for employers to use time and resources on constant monitoring or random searches. Should it be?
A particularly thorny issue concerning employer-provided technology is the support of employee smart phones. Employee email is commonly run through and synced with the employer’s email exchange server. In addition, it is possible to set up smart phone support so that text messaging – including attached photographs – also runs through the employer’s system. Like email, texting is easy, quick, and informal, and, like email, it can be a format for inappropriate, legally actionable, or even criminal activity. Just because an employer might properly have access to an employee’s email and text messages, is there an obligation on the part of the employer to actively monitor them?
It is quite unlikely, under the law as it currently exists, that an employer would be found legally responsible to outside victims for the failure to report improper activity by an employee unless the activity was actually detected by the employer. A situation where an employer does become aware of such messages or activity but does nothing would be far more concerning and more likely to create liability for the employer. It does not take a particularly creative mind to imagine an enterprising attorney suing an employer in a situation involving a victim who has been tragically harmed through the criminal activity of an employee. Although the current state of the law does not recognize a clear legal duty here – and is really unformed at this time – this question is certainly one with the potential to cause sleepless nights for both employers and their lawyers. And it is another very good reason why employers need to be very careful and thoughtful when making decisions about their access to and use of information about the electronic communications of their employees.
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