Legal Brief for June, 2016

Who Owns Your E-Mails at Work?

Most people who work for a business have two e-mail accounts that they likely will be using regularly during the course of a day - their official "work" e-mail address and also a "personal" e-mail address, such as a hotmail or gmail account.  It is quite common nowadays for people to ask for e-mails that are strictly speaking meant for personal matters to be sent to their work e-mail address, and also the reverse, to have work e-mails sent to their personal e-mail address (which Hilary Clinton certainly now wishes she had never done).  There are a variety of issues that can arise from our mixed use of these accounts, and which we need to be aware of in order to protect our own interests.

In the case of e-mail accounts set up by an employer on its own system for employees to use for work purposes, it is legally acceptable for an employer to have the right to monitor and review what is going on by employees on their "work" e-mail accounts.  After all, the employer paid for and owns the computers and set up the system and the accounts are supposed to be part of the business's work process.  If an employee leaves under contentious circumstances, the employer most certainly will be wanting to review whatever the employee sent or received on that account in order to deal with issues arising from the termination.  The IT departments of any businesses will be able to access even those e-mails that you thought you had deleted.

What happens when an employee uses their work e-mail account to receive or sent material related to personal, non-work matters?  Since a person in that situation is using their work e-mail account, they are in effect voluntarily making that material available on their employer's system, and arguably the employer has the right to at least view the personal e-mails and materials.  What use the employer would then be entitled to make of the personal materials is an area that is still developing in terms of applicable legal principles and government regulations.

The use of the personal e-mail accounts such as hotmail or gmail accounts for personal purposes while at work and while on an employer supplied computer or device also raises a number of interesting questions.  Most employees likely think that what comes and goes out of their personal accounts is private and confidential.  This may be true if they are using those accounts in their non-work hours from their own computers or devices.  However, if they are using the "company equipment" for those accounts, then they may be inadvertently opening themselves up to the employer being able to go on a fishing expedition combing through their personal accounts.  And leaving aside what rights an employer has to "use" any material on your personal accounts, rest assured that the computer gurus in the company's IT department will likely be able to access your personal accounts if you are using company computers or devices to use those personal accounts.

Another area of concern is when employees use their personal e-mail accounts for work related purposes.  This can happen if an employee is working from home and finds it easier to have work materials sent to their personal account and use them from there rather than go through the hassle of using the perhaps difficult to access company system.  This type of practice opens up the proverbial can of worms for all concerned.  Certainly by so doing it at the least allows the employer the right to view your personal e-mail account for both work e-mails and in the process review anything that is personal at the same time.  For more on this issue just give Secretary of State Clinton a call and see how she now feels about what she did!

It is important employers provide their employees with a comprehensive and clearly worded policy on the use of both the "company" e-mail accounts and the use by employees of personal e-mail accounts while at work.  If your employer has a policy, make sure you read it carefully and understand what your rights are and what is not protected.  If your employer does not have a policy, it may be prudent to suggest to your boss that it is time to put a policy in place, so that everyone will know where they stand.