Reviewing Employee Emails: Monitoring or Spying?

Federal laws generally prohibit one party from intercepting the electronic communications of another, including reading another person's emails. While some exceptions exist, it is vital that employers understand when, where, and how those exceptions apply -- or risk violating their employee's rights.

When Can We Monitor Employee Emails?

Generally speaking, a company may monitor an employee's work emails when those emails are stored on company-owned servers, even if an employee has marked it as "private." However:

  • Some states require employers to notify employees that their work emails may be monitored.
  • Employees have a presumptive right to use employer email systems for the purpose of union organizing, and federal labor laws restrict employers' rights to surveillance over organizing communications or activities.

Many employers choose to notify their employees that their work email may be monitored, even if their state does not require them to do so. Notification removes an employee's reasonable expectation of privacy in their emails, and it can also work to deter misbehavior over work email.

Employers may not monitor an employee's personal email messages when the email is not stored on a company server. Many personal email accounts through services like Gmail or Yahoo meet this criteria. To view these emails, employers must get the express permission of one of the parties to the email -- either the employee who sent it or the person who received it.

These rules apply even if the employee checks their personal email on a work computer or mentions their personal email in a work email message. For instance, an employer may not punish an employee for the content of their personal emails.

Employers do have control over policies that dictate how company time, computing equipment and bandwidth are used, however. So if an employee is spending many hours a day logged in to their personal email at work in violation of company policy, the company may have grounds to fire the worker for misuse of resources. They may not, however, fire the worker for the content of those personal emails.

When Should We Monitor Employee Emails?

Just because an employer can read certain employee emails doesn't mean that it should. For one thing, looking for a needle in a haystack is a waste of time and resources -- and can put your company's ethics in a questionable light if litigation occurs, even if such monitoring is technically legal.

Under the federal Electronic Communications Privacy Act, employers may monitor employee email stored on a company server for any "valid business purpose." Valid business purposes may include:

  • protecting the company from theft, damage to reputation, or damage to its brand;
  • combating workplace harassment;
  • monitoring an employee who is reasonably believed to be stealing company secrets or colluding improperly with competitors; and
  • securing evidence in case of an actual or pending lawsuit.

Research by The ePolicy Institute estimates that two-thirds of U.S. companies monitor employees' work email use, and about half of those have fired at least one person for misuse. The most common reasons for firing an employee over email misuse include:

  • inappropriate language,
  • excessive personal use of work email addresses,
  • violating confidentiality, and
  • use that violates company policies.

A clear company email use policy can do much to encourage proper employee use of company email and to clarify the situations in which the company may read some or all of an employee's email messages. In your policy, spell out behavioral expectations, specify that employees have no expectation of privacy in emails sent through the company system, and clarify the consequences. Remind employees not to use work email for personal reasons, such as online shopping or making appointments or travel accommodations.

Note: This article provides general information only, not specific legal advice. If you need legal advice, speak to an attorney who is licensed to practice law in your area.