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Yes, emails sent from the workplace almost always belong to the employer.  That still seems to be a shock to many employees.  Look at the story of Chris Gonzalez, grandson of a well-known, former San Antonio Congressman.  See San Antonio Express-News story.  Mr. Gonzalez has reportedly been sending harassing emails to a former girlfriend.  He sent them from work.  The girlfriend's employer blocked them from one work computer.  Mr. Gonzalez works at a large district clerk office.  So, he simply used a different work computer.  Apparently, that is when the girlfriend's employer had enough and called the police.  

Mr. Gonzalez has been arrested for a crime known as online harassment.  His employer says Mr. Gonzalez works for him now, but that could change.  I bet it could......

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It was bound to happen sooner or later.  A lawsuit has been filed over the employer's requirement to check email after hours.  More and more employers are issuing Blackberries and their equivalent to employees with the stated or implicit understanding that the employee check email after hours.  Such a requirement runs right into the Fair Labor Standards Act, which requires that an employee be paid for time actually worked.  

The FLSA has been around since the 1930's.  The federal statute has plenty of precedent.  We know, for example, that if the employer requires attendance at meetings after hours, then the employer must pay for that time.  So, why would "email" time be any different?  

A Chicago police Sergeant has brought a class action lawsuit against his employer claiming that he was required to use his Blackberry on his own time.  Sgt. Jeff Allen is seeking overtime pay, because he was required to use his city-issued Blackberry after hours.  See report.  

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 Courts have only just started wrestling with the limits of online freedom in the workplace.  A recent decision from the New Jersey Supreme Court provides some guidance.  In the case of Stengart v. Loving Care Agency, the former employee left her job.  She also left behind her employer issued laptop.  On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account.  The account was password protected.  But, the employer's experts were able to retrieve the password and review the emails to the lawyer. 

Attorney client communications are, of course, privileged.  The company, Loving Care (or not) had a general policy that employees waived any expectation of privacy when viewing email at work.  But, the policy did not expressly apply to private email accounts and it did not warn employees that their private passwords could be retrieved from a hard drive.   So, the New Jersey Supreme Court found that the employer's policy did not apply to password protected private email relating to lawful matters including attorney-client privileged communication.  The emails  between the employee and her lawyer should have remained private, said the court.  The employer violated her expectation of privacy. 

The employer's law firm did review the emails between the employee and her lawyer.  They notified the plaintiff employee but not for many months.  So, the New Jersey Supreme Court found that the defense firm violated disciplinary rules.  The court referred the defense firm to the lower court for discipline.  Ouch!

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 We love our email.  But, sometimes, email is our undoing.  Ronda Templeton talks about email and its travails in this San Antonio Express-News article.  Of course, she mentions how wise it is to think before you send any email.  Once sent, it is nearly impossible to bring back an email.

Every employee should also understand that if you use the employer's email server for any email, personal or not personal, then the employer probably has the right to look at that email.  

Note her report that 95% of us check our work related email after hours.  Is that time compensable?  If checking email is required by the employer, then time spent doing so will very likely be compensable. 

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 Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is  “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission. 

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.  

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person).  In the workplace, there are varying levels of expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy.  But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring.  Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites.  96% block access to adult sites, 61% to game sites and 50% to social networking sites.  46% track key strokes, content and time spent at the keyboard.  12% monitor the blogosphere to see what is being written about the employer.  43% monitor employee email.  So, yes electronic monitoring is a continuing practice. 

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 School employee loses job because he sent an email containing a one word obscenity to a blog.  See ABA article.  When the employee was confronted with the email, he resigned.  Another example of someone who publishes something controversial on the internet under the mistaken belief no one will ever see it. 

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 Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs top the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee's emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer's email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

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 In a recent decision, a federal court in California found it unlawful for an employer to monitor an employee's key strokes in order to obtain his password to a personal email account.  The U.S. district court found this action violated the Electronic Communications Privacy Act, passed in 1986.  The decision, Brahmana v. Lembo,  is important.   While the email account may be personal, the equipment used to access the account belongs to the employer.  The courts have wrestled with this issue for some time and will, no doubt, continue to struggle with he boundaries between employee property and employer property. 

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