27 Tishri 5778
October 17 2017
     

 

 

Can your Boss Read your Emails?

People are so used to their computers that they use them at work for personal use including emails and surfing the internet. A study conducted in the U.S. determined that the average employee spends more than 2 hours per work day on “unnecessary” (some may be work related and not, necessarily, personal) emails in addition to time spent on surfing the internet, participating in chats, etc. Should employees be allowed to use their employer’s time and resources for personal use? Should employers have the right to scrutinize their employee’s use of employer resources used during the work day?

There are numerous issues that arise with respect to unauthorized and improper use of the internet including introduction into the work environment of viruses and trojan software, intentional or inadvertent disclosure of confidential information of the employer or its customers, insider trading, creation of a hostile work environment with respect to sexual or discriminatory content and violations of laws particular to the employer’s industry. Many employers, particularly those in large or especially sensitive specialties maintain copies of employee emails (sent and received including those that the employee deleted).

Some of the potential risk can be minimized by using firewalls and anti-virus programs but others can only be addressed through monitoring proactively or retroactively (i.e. once the ‘barn door is closed’). Employers who may not actively monitor their employees’ emails could be compelled to do so via subpoena if a lawsuit is filed. Oftentimes, teams of lawyers are assigned to carefully scrutinize years of employees’ emails looking for the “smoking gun” of a lawsuit – focusing on the deleted emails figuring that those may be the ones in which an employee sought to conceal her tracks.

There may also be financial, moral and halachic issues which arise when employees engage in personal activities during work hours. Monitoring emails may not only address the practical issues noted above but may serve to discourage employees from “wasting” their employer-paid time.

While all of the above may be true, does an employer still have the right to “invade” his employees’ privacy by reading their email regardless of the employer’s motives?

The general view in the U.S. is that if a computer and internet connection belong to the employer, the employer is generally considered to have the right to check and inspect their usage. In Israel, there is no explicit law nor legal precedent with respect to this matter, but a considered analysis would balance the various laws and positions which come into play in evaluating the relative rights of the parties. Similar to the U.S. position, Israeli law would recognize the employer’s pecuniary interests and ownership of the means through which employees would access their email/websites and, therefore, the employer should have the right to inspect the usage of this equipment and prevent it from being used for unwanted purposes. On the other hand, individuals in Israel have a right to privacy according to various laws which may impose limitations on the employer’s entitlement to exercise a right which she might otherwise have.

It is reasonable to surmise that an employer would not generally have the right to read an employee’s email if there is no doubt that it is private (although, as noted above, even apparently “private” emails may actually impact upon the employer). Similarly, it would be difficult to justify the installation of cameras in places which the employee has a reasonable basis to believe that he has complete privacy. It would seem that an employer would certainly have the right to check how much time the employee uses the internet, but checking the actual sites visited by employees might be problematic.

Employers are generally advised to notify their employees of the existence of the employer’s policy to scrutinize the employee’s emails and/or internet usage. It would also be advisable to have employees acknowledge in writing their awareness of the existence of that policy. Some employers have begun to include the express provision acknowledging the existence of the policy in the employment agreement. The policy itself should be clear and understandable.

Even if an employer monitors its employees’ usage of the internet, it should be done to a group rather than specific individuals, in the absence of good cause regarding specific employees.

The steps taken above may give an employer some degree of comfort in being able to review his employees’ emails but an employer would still be well advised to ensure that there is a legitimate and justifiable reason for doing so.

From the employee’s perspective, however, you should anticipate that every incoming and outgoing email which is communicated via office facilities as well as the websites to which you surf, may be scrutinized by your employer and/or third parties – you should act accordingly.

This article is not to be considered as a legal opinion. For legal advice, we suggest you contact legal counsel directly

Russell D. Mayer is senior partner at the Jerusalem-based law firm of Schuman, Livnat & Mayer. If you have any comments or questions with respect to this article, please contact Russell by email at mayer@slmlaw.co.il or by phone to 02-679-9533. All rights reserved ©

 
 

 

 

 
           

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