With the advent of cell phones and the Internet, the line between the personal and the professional is continually blurred. Do you want your boss, your subcontractor, or your customer to be able to text you after work hours? Should you befriend a colleague on Facebook, or just leave it as a LinkedIn connection? If you get a company WhatsApp soccer team group message during work hours, can you open it, or does it need to wait until you leave the office? Now that we are accessible 24/7, and by pretty much anyone, the boundary between work and home life has been thinned, especially with the smartphone and tablet revolution in the last few years. We wonder: Is there any personal privacy anymore?
The question plays itself out on a legal basis in terms of employer rights to employee digital communication exchanges, even if they are considered private. We need to understand the circumstances in which employers have rights to access employee communication: Do they have rights a priori, or only with probable cause? In other words, can employers monitor communication for, say, trade secret leaks, or must they have reason to suspect wrong doing before accessing employee emails or other modes of communication? And here's the crux: Even if employers do have rights to employee communication exchanges, do they have rights to communication which is not under company ownership?
Let's look at the scenarios where employee communication privacy may be called into question:
At present, digital communications are governed by the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA). But there are still fine lines, and in any case, the laws might change. What is certain is that employers must spell out their rights in contracts with employees. This way, if the laws do allow them access to employee communication, they will not be blocked from doing so due to a wrongly-worded contract. Therefore, it is incumbent upon management in general, and human resources departments in particular, to ensure that employee contracts include clauses about employer access to their communication, in both work and personal domains. It is also advisable for employees to limit their work-related discussions to company-owned means of communication. This way, the lines between the professional and the personal can remain separate.
The question plays itself out on a legal basis in terms of employer rights to employee digital communication exchanges, even if they are considered private. We need to understand the circumstances in which employers have rights to access employee communication: Do they have rights a priori, or only with probable cause? In other words, can employers monitor communication for, say, trade secret leaks, or must they have reason to suspect wrong doing before accessing employee emails or other modes of communication? And here's the crux: Even if employers do have rights to employee communication exchanges, do they have rights to communication which is not under company ownership?
Let's look at the scenarios where employee communication privacy may be called into question:
- Company-owned devices with company-owned communication. For example, internal company emails, using the company email address, via a company smartphone.
- Company-owned devices with non-company-owned communication. For example, sending an email or message via web or cellular-based communication, such as Hotmail/Gmail/FB Messenger/WhatsApp, or SMS - using a company smartphone.
- Non-company-owned devices with non-company-owned communication. For example, sending an email or message via web or cellular-based communication, such as Hotmail/Gmail/FB Messenger/WhatsApp, or SMS - using a personal cell phone.
At present, digital communications are governed by the Electronic Communication Privacy Act (ECPA) and the Stored Communications Act (SCA). But there are still fine lines, and in any case, the laws might change. What is certain is that employers must spell out their rights in contracts with employees. This way, if the laws do allow them access to employee communication, they will not be blocked from doing so due to a wrongly-worded contract. Therefore, it is incumbent upon management in general, and human resources departments in particular, to ensure that employee contracts include clauses about employer access to their communication, in both work and personal domains. It is also advisable for employees to limit their work-related discussions to company-owned means of communication. This way, the lines between the professional and the personal can remain separate.
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