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When committing to work at a firm, particularly one of significant size, employees are often asked to sign a contract or even sign off on an employee handbook. Companies may state in this contract or agreement if electronic communication will monitored, particularly when employees are unavailable or away from the office. However, not all companies set forth these types of details in a signed document. Employees should be aware that even if they are not asked to sign such a document, that a company’s servers, computers, domains and electronic communications are often monitored.
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In most cases, courts have found in previous cases, that employers do have the right to monitor an employees’ electronic communications on company computers. Monitoring the electronic communications sent to employees on a company domain is considered a “gray" area. While the company domains are often considered company “property" by the company, the employee may be protected in instances where they were not made aware their e-mails were monitored, or they did not provide the access to the e-mails. All employees should understand that the potential for their electronic communication to be monitored is much greater when using company devices and company domains. For the utmost privacy employers should choose to access their personal e-mails on a third party server, outside of the company network and from a personal device.
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Third Party Accounts
In the few court cases that have addressed the issues of electronic communication privacy, a greater privacy protection is recognized in personal e-mail messages that are sent or received using an employee’s third party e-mail account. When conducting personal electronic communication it is safer to utilize non company domains and servers, however that does not mean, especially if using company devices, that the communication is not being monitored. However, if an employee does find that third party personal correspondence is being monitored either during or after their tenure with the company, it can be considered an invasion of privacy.
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Employer Legal Concerns
Employers must be aware of the two most common acts which refer to electronic communication, the federal Stored Communications Act and the Electronic Communications Privacy Act. The SCA refers to the unlawfulness of an intentional access of a “facility through which and electronic communication service is provided" without authorization from the employee. Alternatively the ECPA prohibits any individual from the company from “intercepting" any type of electronic communication. Regardless of what an employer may find in the electronic communication of the employee, the unauthorized access to personal e-mail from a third party server is almost always considered unlawful. If an employee does find that an employer has been unlawfully reading or accessing their e-mail, they may want to seek legal counsel for protection of their private accounts.