In her opinion in Fraser v. Nationwide Mutual Insurance Co. et al., Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania ruled that because the company accessed Richard Fraser's E-mail from the message storage system after it had been read by its intended recipient, it was not in violation of the Electronic Communications Privacy Act (ECPA) of 1986--the law originally written to protect citizens from illegal wiretapping. Intercepting a message before it is read, however, is a violation.
The judge also noted that although Nationwide's retrieval of Fraser's E-mail (which stemmed from a dispute over his noncompany business interests) could be ethically questionable, "it is not legally actionable under the ECPA."
That's good news for companies that regularly shadow employee E- mail, which almost half of all U.S. corporations do. Nearly 47 percent of the companies polled in the American Management Association's 2001 Workplace Monitoring and Surveillance Survey reported that they store and review employee E-mail messages--more than a 300 percent jump from 1997.
The "climate is not favorable for employees," says Thomas Smedinghoff, a partner in the Chicago office of law firm Baker & McKenzie. Even when companies do not warn employees that E-mail is under a watchful eye (Nationwide did), Smedinghoff confirms that employers generally have the right to monitor E-mail for legitimate business purposes.
Companies may have carte blanche to monitor employee E-mail, but workers still have legal recourse if the information gleaned is not used judiciously. That includes, says Smedinghoff, using the information to defame a worker or wrongfully dismiss an employee with a medical condition that is revealed through an E-mail sweep. -- Joan Urdang
Percentage of U.S. companies that are keeping tabs on employees.
- Computer files 36.1
- E-mail messages 46.5
- Internet connections 62.8
Source: American Management Association