BUSINESS LAW PAPER SUGGESTIONS
Introduction
The rights to privacy that employees are entitled to in the workplace is an issue that is gaining more and more attention especially with the increase in use of electronic mail and office based communication systems. The laws that govern the use of company resources (in this case specifically email accounts and company computers) are not as clear cut as those relating to other workplace scenarios, such as sexual harassment or payment of dues. This is because these laws have to protect both the privacy of the employees: which is a fundamental human right that applies to every person, but at the same time try to maintain the employers right to dictate how their resources are to be used. There has to be a balance between these two.
In today’s society, the general norm is to view company computers and by extension all data and information on them as company property (Gordon). This means that an employer, by right of being the owner or manager of the company’s resources has the legal right to monitor how their resources are being used so as to audit efficiency and ensure that the company’s resources are being put into good use. However there exists a not so fine line between monitoring resource use and infringing on the employee’s right to privacy. This is especially so since over half of employees that were asked in a recent survey regarding email use in the workplace responded that they indeed access their personal email accounts using their employers’ computer systems (Perkins Coie LLP). There are many more that use their company email: which is supported by the employer to send and receive personal correspondence (Duke University Law Library/NC Resources). This brings up a serious legal issue: what exactly are the laws regarding employer’s reading or monitoring the email accounts of their employees?
Analysis
On one hand the privacy of employees is protected by law under various acts and internationally accepted laws. For example the Electronic Communications Privacy Act of 1986 (ECPA) protects any information (in this case referring to signs, signals, writing, images, sounds) sent using an electronic device or medium (ie. wire, radio, electromagnetic, photoelectronic or photo-optical system.) The act prevents the government or any other person or agency from accessing this information without prior consent from the owner of the data (Littler). The act also protects data that has been stored in an electronic system such as a computer or hard drive.
Some cases in which the court has ruled in favor of employees regarding their privacy in the workplace are Stengart v. Loving Care Agency, Inc., 990 A.2d 650 (2010) and City of Ontario, California, et al. v. Quon et al. 560 U.S. (2010). in the first case the plaintiff was a former employee of a company who had resigned from her job citing workplace discrimination. Prior to her resignation the company had made a copy of the hard drive of her laptop which had been provided to her by the company (Kerr). This included personal correspondence between the plaintiff and her lawyer regarding her workplace discrimination case.
The lower court that heard the case had ruled that the emails at the time did indeed belong to the company seeing as it had a policy in place that stated that the management could access information that was stored on company-owned computers and laptops (The New York Times). However on review of the case in a higher court the New Jersey Supreme Court ruled that
(1) That Loving Care’s policy was “ambiguous” and did not specify that personal, password-protected e-mails were subject to company review
(2) That reasonable expectation of privacy could have been created due to the company’s allowing of “personal use” of the computer, and
(3) That company interests cannot infringe on attorney-client privileges

the third point in the ruling was important in this case seeing that the correspondence in question was regarding an intended lawsuit and was therefore not only covered by the laws regarding personal privacy but also by the laws that govern the privacy between an attorney and their client.
The second case of Ontario v. Quon,did not concern emails directly but rather information that was sent using phones that were provided by the employer (Forth Amendment). The Employer had provided the plaintiff with communication devices who’s services were facilitated by a third party company (Rotenberg). The communication charges for the use of the devices were to be catered for by the employer. However, when the bills for the services surpassed the expected rates that the employer was to pay, they decided to review the messages that had been sent using the devices.
In the monitoring of the text messages, it was found that the plaintiff had been using the device for personal texts as opposed to strictly work related texts Pinguelo & Taylor). The employee sued the city stating that the audit of the messages was not primarily meant to check the efficiency of the system as the employer had stated but rather was meant to check on the conduct of the employer. In the ensuing cases and appeals the courts debated on whether an employer had the right to access the messages of its employers in order to determine their moral conduct (Privacy & Data Security Law Journal). Even though the case was settled in favor of the defendant (Rubin). The court still ruled that an employer cannot access the messages of its employees for moral reasons. The laws that govern privacy apply in this cases.
However there are instances that the courts have ruled that the monitoring of an employees email is legal, mainly relying on the fact that the computers, servers and the corporate email accounts belong to the employer and therefore they have the right to monitor the information contained in them (Morgan & Bockius LLP). The reasoning is that employees are supposed to use the resources provided to them by the employer for work related purposes only and therefore the information contained in the correspondence cannot be deemed to be private or confidential. The employer has the right to access all data that is relevant to the business. Smyth v. Pillsbury, 914 F. Supp. 97 (E.D. Pa., 1996) and Bourke v. Nissan Motor Corp., No. B068705 (Cal. Ct. App., July 26, 1993) are two examples where employees emails were accessed by their employer and the courts the termination of the employees’ contract as a result of information gained through their email accounts (Winters). In the first case Bourke v. Nissan Motor Corp the plaintiff had taken the employer, Nissan Motor Corp to court for wrongful termination after the company’s management accessed personal sexual messages sent between two employees via the company’s email system (Nicholas). The retrieval of these personal messages was in the view of the plaintiff a violation of common law invasion of privacy according to the Fourth Amendment, violation of their constitutional right to privacy, and violation of California’s criminal wiretapping and eavesdropping statutes (Cossrow). However, in regards to these charges the court ruled that the company had not broken any legal statutes mainly because
(1) Plaintiffs each signed a Computer User Registration Form, which states that “[I]t is company policy that employees and contractors restrict their use of company-owned computer hardware and software to company business.”
(2) The two had been aware for months that E-mail messages were, from time to time, read by individuals other than the intended recipient

The court also found that the actions of the company were not in violation of the Electronic Communications Privacy Act and the Stored Communications Act because firstly the company did not “tap” into the system used for transmission since being the administrator and facilitator of the system it could access the information contained in the company’s servers at any time (Aron and Lee). Also the fact that the emails had not been intercepted during transmission but from the server in which they were stored also weighed the ruling in the defendants favor.
In the second case Michael A. Smyth v. The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996) the plaintiff had sent threatening emails to a work supervisor from his home computer, but using a company email address (FindLaw). The Pillsbury Company had previously assured its employees that correspondence sent over email would not be monitored nor used as grounds for termination of employment or any other disciplinary action (NC Bar Association Index). This was used by the plaintiff to argue that his privacy had been violated (NC Lawyers Weekly). However, the court ruled that this was not the case since in the usage of company email, an employee cannot expect any substantial amount of privacy (NC Court of Appeal Opinions). The court also ruled according to the Borse case which regarded an employee being terminated for refusing to take a urine test, the finding was that the the tort of intrusion is
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
This meant that the intrusion of a person’s privacy by an employer is only regarded to be severe when “it is highly offensive to the ordinary reasonable person” in terms of there physical body or sensitive personal information.
Conclusion
As it has been seen in the review of the cases that have been ruled regarding the entitlement of employees to their privacy while using work-based computers to send and received emails as well as company owned email accounts that the law does not have a clear ruling as to whether the employer monitoring an employees personal email accounts is legal or not. The rulings that have been made have been on a case by case basis, taking into consideration the factors and specific situations that have occurred. This is because as earlier stated, the law has to protect the rights of both parties: the employer and the employee.
The best solution in this case is for the companies to have clear policies regarding the use of company resources including email accounts and computers, this will serve to make the employees aware as to the risks that they are exposed to in terms of privacy and monitoring by management (NC Court System). The employees too should refrain from using company resources for personal use: company email accounts should be used strictly for company related correspondence so as to ac\void a scenario where the employer can gain access to the employees’ personal information. However, as seen in the Stengart v. Loving Care Agency, Inc., case, the correspondence between a client and attorney is protected by attorney-client privilege laws regardless of whether company equipment or emails were used.
Works cited
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