Think Before You Send: No Right to Privacy in the Workplace
By: Julie A. Gafkay

One of the most common ways to communicate in the workplace today is through e-mail.  It is not uncommon for employees to send and receive several emails throughout the day as part of their job duties.  It’s not surprising to know that in the midst of all those e-mail exchanges, employees oftentimes send and receive personal e-mails to friends and family, as well.  While some e-mails may seem innocent, such as the daily joke you received as spam and forwarded to your friend, unbeknownst to you (because you barely read it before forwarding) that email contained sexual innuendo which is not only being read by your friend but your company’s information technology (“IT”) department.  When it’s received by the IT department, the e-mail will most likely be flagged because of the sexual content and then forwarded to your supervisor, which will likely lead to some type of disciplinary action against you.  If you’re on the defensive, your first thought might be that your privacy has been invaded! You may be surprised to learn, however, that there is little to no privacy right as to your e-mail under federal or state law.

Most challenges against private employers brought by employees for invasion of privacy with regard to e-mail usage have failed.  In order for an individual to bring a claim for invasion of privacy in Michigan, there has to be proof that the individual had a legitimate expectation of privacy.  In the workplace, an individual may have an expectation of privacy, but Courts have held that expectation is not legitimate.  Indeed, Courts have found that employers have legitimate business reasons to monitor employee e-mail communication.  One essential reason to monitor outgoing e-mails of employees by a company is to protect against computer viruses.  Other reasons to monitor can include maintaining employee productivity, preventing workplace harassment, and reviewing e-mails in response to a subpoena.  Because of these legitimate reasons, employees generally have no reasonable expectation of privacy of e-mail in the workplace.

Notwithstanding the above, it is advisable for employers to advise employees in writing that their e-mails may be subject to monitored by the employer.  A written policy can put the employees on notice so that they are more likely to think before sending and can minimize the likelihood that an employee would prevail in an action for invasion of privacy.   Employers should consult with an attorney to draft a workplace policy that clearly puts employees on notice if it wants to monitor emails.

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