Mgmt 447 - Employers Access to Employee's E-Mails: Ethical or Not?

Nicolette Mena

MGMT 447 Th 7pm

05/09/11

Employers Access to Employee's E-mails: Ethical or Not?

Employee monitoring has always been a necessity for employers, but with the advent of the Internet in the workplace in the 1990's and the fairly recent explosion in popularity of social media, the need for monitoring of employee web surfing and e-mailing on the job has become a necessity. In order to better manage their rights to monitor their employees, employers have created policies prohibiting the use of their Internet and e-mail systems for personal use, some even require a contract or waiver of rights signed in regards to the extent of monitoring the company can perform on their activity upon the date of hire. In the eyes of employers, allowing employees to use the Internet and e-mail on the job is like playing with fire, they can use it to be more productive in regards to work related research, but it can also slow their productivity if they are spending their working hours surfing the Internet or writing emails for personal use. The real question here is not whether the employers have a right to monitor their employees e-mail, because for productivity purposes they do, but rather, the question is to what extent is the monitoring of employee e-mails ethical.

A company e-mail system can be an excellent tool for companies at the hands of their employees, but only if the employees are using the company's e-mail system strictly for work purposes, but naturally most employees do not restrict their company e-mail use to work related subject matter. The question to keep in mind when discussing an employer's right is that of an employer's right to monitor their own company's e-mail system to keep a handle on the productivity of their employees. In Shoars v. Epson America, Inc., No. SWC 112749 (Cal. Super. Ct. 1990) the plaintiff, as the e-mail administrator, discovered that her manager was not only accessing the employees' e-mails, but also reading and printing employee e-mails, when she confronted her manager about his unethical behavior she was turned away and told not to obstruct his monitoring of employee e-mails. Shoars reported her manager for reading through employee e-mails, but unfortunately was in turn fired for insubordination by Hillseth, her manager. This case was amongst the first of a series of cases regarding employees being terminated in a supposed unlawful manner due to the lack of a company policy on e-mail communication. Had there been a policy stating that the employees were consenting to having their e-mails monitored by Epson, then Shoars would never have had a right to be so outraged resulting in her termination. In response to her termination Shoars sued Epson for conspiracy, slander, and wrongful discharge, claiming that Hillseth was in contempt of California law prohibiting wiretapping and eavesdropping. After the Trial court granted summary judgment to the defendant, Epson appealed the ruling and brought it to the appellate court, where the trial court ruling was affirmed. Fortunately for Shoars, the appellate court did rule in favor of one of the plaintiff's claims pertaining to slander, due to the rumors Hillseth and Epson's employee relations manager La Monte spread after Shoars's termination. The appellate court concluded that the plaintiff's claims in regards to eavesdropping and wiretapping were baseless since employers had the right to monitor their corporate e-mail system. This case was rather unique actually, because the termination did not result from the inappropriate content found within an e-mail, but rather as a result of insubordination relating to employee e-mail monitoring.

Most cases pertaining to employee e-mail monitoring, are those aroused from "wrongful" termination suits, deriving from the improper use of company e-mail by an employee. In Bourke v. Nissan, No. YC-003979 (Cal.Super.Ct., L.A.Cty.) aff'd, No. B-068705 (Cal.Ct.App. 26 July 1993) Bonita Bourke, the plaintiff, along with Rhonda Hall, was terminated based on their unacceptable use of Nissan's e-mail system. Nissan based their termination upon the fact that they uncovered e-mails between the plaintiff and Hall which held material of a sexual nature, documentation of reproachful opinions of Nissan and other Nissan employees, as well e-mails that contained tactless jokes. In response to their termination Bourke and Hall filed suit for wrongful discharge along with claims of invasion of privacy as well as Nissan's breach of California statutes pertaining to the unlawfulness of eavesdropping as well as wiretapping. The Trial court granted the defendant's motion for summary judgment on all counts and when Bourke and Hall appealed, the appellate court affirmed the ruling of the lower court. The appellate court concluded that the plaintiffs did not have a reasonable expectation of privacy in regards to defendant's e-mail system, and were actually notified that their e-mails could be in fact monitored without notice. The appellate court affirmed based on three factors; the first being the evidence Nissan produced in the form of a signed "Computer User Registration Form," which stated that use of their company's computers were strictly limited to work related purposes only. Secondly, the plaintiffs had prior knowledge that the e-mails were being intercepted, but the most damaging point made was that of a complaint made by Lori Eaton. Eaton was also a Nissan employee and complained about having received an inappropriate e-mail from Bourke; the plaintiffs were aware of this complaint prior to termination. In the end, like the Shoars v. Epson case, the wrongful discharge claim was dismissed.

An important statute passed in regards to the protection of privacy in electronic communication is the Electronic Communications Privacy Act (ECPA Pub. L. 99-508, Oct. 21, 1986, 100 Stat. 1848, 18 U.S.C § 2510. In Andersen Consulting LLP v. UOP, 1998 WL 30703 (N.D.Ill. 26 Jan 1998), the court had to determine whether the ECPA could be applied when a question of a public, as opposed to private e-mail system, issue arose. The plaintiff's employees were hired by UOP to do work on their computers in regards to an integration project as independent contractors, but were later terminated by UOP because they were not pleased with their service. While working for UOP, Andersen's employees were using UOP's company e-mail system to exchange messages amongst themselves as well as third parties not employed by Andersen or UOP. Upon termination of employment, UOP decided to file suit for negligence and breach of contract, as well as fraud. In response to the lawsuit Andersen countersued UOP and their legal counsel