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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 email communications are. As an employer, you may have wondered what rights you have to read your employees' email communications.

The Electronic Communications Privacy Act of 1986 (ECPA) may provide employees with some protection against email 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 email 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.

This website is not intended to constitute legal advice or the provision of legal services. By posting and/or maintaining the website and its contents, Lucas Law does not intend to solicit business from clients located in states or jurisdictions outside of Illinois wherein Lucas Law or its individual attorney(s) are not licensed or authorized to practice law.

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