Big Brother? E-mail monitoring in the workplace.
Published August 15, 2010
Associated Areas of law
Communicating by email has become the norm in today’s business world. Being able to send a message which is received almost simultaneously certainly has its perks; however, such communication can also increase number of corporate vulnerabilities for a business. For example, email communication can lead to the downloading of infected files; the misappropriation of company resources; the release of confidential or copyright-protected material; and an increase in legal liability. It is not surprising that employers my wish to utilize email-monitoring to protect their organization. However it is important to recognize that there is a line between reasonable email monitoring and a privacy infringement.
The Courts have only had a limited opportunity to provide direction as to the legality of email monitoring. In fact, unless there is a collective agreement stating the contrary, employers are generally free to monitor their employee’s emails. The line between acceptable surveillance and an invasion of privacy depends on four things: the nature of the monitoring; whether or not the employees are aware of the monitoring; whether or not the activities being monitored would be categorized as being business or private in nature; and the extent to which the monitoring is obviously irreprehensible. It is important to remember that employees are entitled to a reasonable expectation of privacy, but it is also worth noting that, even in the absence of a policy, employees should exercise common sense with their use of business email accounts.
The Court has expressed concern that such policies could take email monitoring too far, so employers may want to take steps to ensure that their monitoring practices are legal and ethical.
In a unionized environment, any email monitoring should be negotiated and incorporated into a collective agreement. In a non-unionized environment, an email monitoring policy should be established, and should communicate guidelines for acceptable email use, protocols which address any third party email access, and any consequences which may arise as a result of a noncompliance with the policy. Employees should always be made aware of any email monitoring and, if possible, should sign and retain a copy of the policy.
It is a good idea to have a legal opinion when forming an email monitoring policy or collective agreement. Email is certainly an invaluable tool for conducting business and the responsible use of business email can protect the business from any number of areas of potential liability. Email monitoring may be of some assistance to employers when done reasonably and appropriately.
This article is intended for information purposes only and is not intended to be legal advice. We suggest you contact a lawyer for advice on your particular business and circumstance.