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Someone’s reading your email at work – your boss
The proliferation of e-mail and its ever-increasing use in the workplace has provided employers with a greater ability than ever before to monitor and read the personal communications of employees.
Not surprisingly, many employers do so. The American Management Association, for example, estimates that more than 38 percent of major American businesses will store and review employee e-mail this year, up from the 27 percent of such firms that did so in 1999.
Employees, however, continue to use employer provided e-mail for inappropriate and/or non-business related reasons. Some employees have been disciplined or discharged for engaging in such conduct. The New York Times, for example, fired 23 employees last year because of their distribution of potentially offensive e-mail to other employees. Events like the firings at The New York Times have prompted the following question: Do employees have a “right to privacy” with respect to personal or otherwise non-business related e-mail that protects them from such disciplinary action?
From the perspective of Jewish law or “Halachah,” the answer to this question appears to be “no,” at least in some circumstances. Although Jewish law has recognized a right to privacy from the unauthorized reading of private letters since a 10th century edict from the great Talmudic scholar Rabbenu Gershom, a person forfeits this right in situations where he or she has consented to the review. This consent can be either implied or express. Thus, for example, it appears no privacy right exists under Halachah where an employer has disseminated a policy pursuant to which it may review employee e-mail and the employee uses the employer provided e-mail with full knowledge of that policy.
The employer, moreover, seems to have a halachic right to institute such a policy. Maimonides states in his Mishna Torah, for example, that an employee should not rob his “employer by idling away his time on the job, a little here and a little there, thus wasting the entire day deceitfully.” It appears from this principle that an employer may take necessary steps, such as reading employee e-mail, to monitor employee productivity and to discipline or discharge any employee caught idling his time away by using employer provided e-mail for non-business related purposes.
From the perspective of secular law, the extent to which such a right to privacy exists is unsettled in many jurisdictions and, as one judge in Arizona has noted, may simply be another area “where technology has outpaced the law.” Yet, with a few exceptions, it appears that no privacy right will be found where an employer has an established written policy regarding such monitoring, that the policy has been regularly distributed to all employees and that the employer has complied with this policy. Nor will such a right be found where an employer utilizes such monitoring to determine whether particular e-mail was, in fact, business related.
It also appears that no privacy right will be found where an employer read the e-mail as part of an investigation of alleged misconduct. Last year, for example, a Texas appellate court affirmed a ruling by a lower court that an employee under investigation for sexual harassment and “inventory questions” had failed to allege facts sufficient to demonstrate an expectation of privacy in e-mail stored in “personal folders” on his office computer. The court added that any such privacy right, had one been sufficiently alleged, would have been outweighed by the employer’s interest in preventing its e-mail system from being used as a conduit for inappropriate comments or illegal activity.
Employers argue that review of employee e-mail is necessary for several reasons, including the need to protect confidential information, prevent illegal activity such as discrimination and prevent employees from wasting time (as in our example from the Mishna Torah). Whether and to what extent these ends justify the means is an issue that, this year along, has been the subject of legislation in California and, in limited fashion, hearings in the United States Congress. Although it is not clear how the issue will ultimately be resolved, it is clear that, at the present time, employers can and do review employee e-mail. Thus, employees who use e-mail at work for non-business related reasons must realize that they do so at their own peril.
Authors note: The intention of this column is to briefly explore on a monthly basis current legal issues of interest to Ledger readers from a halachic and/or secular perspective to prompt comment, discussion and study. Specific issues regarding Halachah should be discussed with a rabbi or similarly knowledgeable person, while such issues regarding secular law should be discussed with an attorney.
