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Employment Blog

Employee Use of Company E-mail May be Protected from Company View

Authored by Dean R. Dietrich
Dean R. Dietrich
Attorney
Wausau Office

Posted on July 25, 2018
Filed under Employment

Companies have always taken the position that an employee’s use of company e-mail is not private, and can be accessed and reviewed by the company at any time.  There have been a large number of court cases, which have held that a company that has issued a policy, stating that private use of company e-mail is not confidential, will allow the company to review the content of an employee’s personal e-mail communication when sent over company e-mail.  This has become particularly helpful to companies when an employee decides to pursue employment litigation against the company.  It is surprising how many employees will use company e-mail to communicate with their attorney about a possible claim against the company, even though the employee has been told that use of company e-mail is not protected or confidential.

A recent decision from a federal District Court in Maryland has at least raised a question about a company’s right to access the private e-mail communications of an employee, even when using company e-mail.  The District Court found that an employee’s communication with an attorney was protected from disclosure as a privileged communication, because the company policy was not clear that personal use of company e-mail was either not allowed or not confidential.  The company policy indicated that use of company e-mail for private purposes was to be kept to a minimum.  The company also did not actively monitor the personal e-mail communication of its employees even though it reserved the right to do so.  The Court also noted that the company did not re-issue (or refresh) the company policy about use of company e-mail for private purposes on a regular basis.

The above decision does not overturn Court decisions, but does become a warning for companies about how they handle their company e-mail policy.  Companies need to be diligent in issuing and refreshing every employees’ understanding of a company policy that use of company e-mail is not protected or private.  Companies also should consider some type of regular review of employee private communications over company e-mail systems, in order to show this is a legitimate concern of the company.  Companies now have a “heads up” that they need to pay attention to how they identify and implement their policy on use of company e-mails.