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The Current State of the Law
At present, the most important governing statute is the Electronic Communications Privacy Act (ECPA), a federal law that generally prohibits the "interception" and disclosure of wire, oral and electronic communications. But the ECPA defines "interception" in a very narrow manner. Courts have generally interpreted the term to apply only to the review of an e-mail during its actual transmission from sender to recipient. Reviewing the e-mail after it is transmitted - for example, when it resides on the company's e-mail server - is not an "interception" within the meaning of the statute.
In addition, the ECPA permits the interception of an electronic communication if: 1) one party consents in advance; 2) the employer furnishes the e-mail service; and 3) the employer intercepts the e-mail in the ordinary course of business. Requirements 2 and 3 generally take care of themselves. As for 2, so long as the e-mail was sent on a company system (as opposed to the employee's personal AOL account), that is a non-issue. As for 3, the term "ordinary course of business" has been interpreted by the courts to mean anything to do with quality assurance, theft prevention, promoting employee productivity, avoiding liability, and so on.
But what about requirement 1, mandating consent? For years, we (as well as many other lawyers and consultants) have been preaching the message that every employer must promulgate and distribute to all employees an e-mail/internet policy which, in addition to specifying the dos and don'ts of e-mail and internet use, advises the employees that their e-mails and internet use are subject to employer monitoring. Consent can be established by proving that the employee received such a policy. (Word to the wise: if you do not have an appropriate e-mail policy that has been reviewed by competent counsel, you are running huge and avoidable liability risks for a great many other reasons as well.)
So, from the employer's point of view, what's the problem?
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
