E-MAIL COMMUNICATIONS AT WORK

In the business world today, the trend is to replace contacts by telephone, paper memoranda, and face-to-face meetings with e-mail messages. E-mail is a quick and convenient method for communicating with co-workers, clients, and vendors. However, many employers now monitor their employees' e-mail as a method of supervision and as a way to exert control in the workplace. As an employee, you may have wondered how private your e_mail communications are. As an employer, you may have wondered what rights you have to read your employees' e_mail communications.

The Electronic Communications Privacy Act of 1986 (ECPA) may provide employees with some protection against e_mail monitoring by employers. However, that Act likely will not apply where an employer provides its own noninterstate system. In other words, if e-mail communications are sent through an interoffice net server rather than through a commercial provider, such as America Online, this would be considered a noninterstate system. The Act may also be inapplicable where employees have given prior consent to e-mail monitoring and where the monitoring is done as part of a business use.

One Illinois court has found that where a company maintains its own internal e-mail system separate from the Internet, users of that system have no expectation of privacy under the ECPA. Therefore, if a company has its own e-mail system, an employee will probably not have a claim for violation of the ECPA where the employer routinely reads or reviews e-mail communications sent by way of the internal system.

Furthermore, the ECPA provides that its protections will not apply where one of the parties to a communication gives prior consent to the interception of a communication. Therefore, if an employee who sends an e-mail message, or the party to whom the message is sent, previously told the employer (orally or in writing) that the employer would be permitted to intercept his or her e-mail messages, then the ECPA will not apply. Even if no express consent is given, an employer may still argue that it had the right to intercept e-mail communications sent at work based upon the employees' implied consent arising from the employer/employee relationship.

Finally, an employer may argue that the ECPA does not apply where the interception resulted from a business use. However, it is likely that this exception will only apply in instances where the employer is classified as a system provider, such as America Online.

Although no Illinois courts have addressed the issue, Illinois employees may have legal protection against interception of e-mail messages by their employers under the Illinois Eavesdropping Act or by way of a common-law action for violation of the right of privacy. In addition, employees fired for sending inappropriate e_mail messages may be able to claim wrongful discharge.

If you use e-mail at your place of employment, the best approach may be to play it safe. One e-mail authority has written Five E-Mail Rules to Live By: (1) treat e-mail as public information; (2) assume e-mail messages are permanent; (3) never use e-mail to discuss sensitive issues; (4) remember that you cannot control who reads your e-mail; and (5) do not use the company's e-mail for personal correspondence. If these e-mail rules are followed, problems can be avoided before they arise.