Are your corporate communications being monitored?

Are your corporate communications being monitored?

Phone calls, mails, instant messages, we all like to keep our communications private. And, we have a reasonable expectation of privacy in what we say – or do we? It depends . . .

Monitoring of employee’s communications at work is on the rise in some companies. While the thought of your work communications being monitored can be unsettling, it is often done for both the benefit of the company as well as to protect employees. We have evolved into a highly mobile workforce today – in addition to our standard office workstations, we start the day with emails on our iPad at the kitchen table during breakfast, text and email between out of office meetings, and use social media to exchange volumes of information in a timely manner. These quick messages, with various attachments, are efficient to conduct business on the move, but they also come with inherent risk. Fast and unedited communications can expose sensitive information, contain inappropriate messages, intentionally or inadvertently share corporate secrets, or even rise to the level of committing a crime.

Research on the issue of corporate monitoring of employee communication conducted by the American Management Association revealed that more than half of the companies they surveyed monitor employee emails. More than a quarter of them have terminated employees due to misuse of communications technology. Why do companies engage in this practice? Avoiding legal liability and protecting their corporate assets are the top reasons. In the same survey, 15% of the companies reported that an email triggered a lawsuit. Most companies these days have a documented email policy that includes informing their employees that their communications may be monitored. Is it legal to read your employees digital data?

Many courts have sided with the employer when it comes to monitoring of employee’s emails. In Smyth v. Pillsbury Corp, the court stated that even if an employer assures their employees that their corporate emails won’t be intercepted, there isn’t a reasonable expectation of privacy while using the corporate email system. In Smyth, the company repeatedly assured the employee’s that their emails were not being monitored. The court in that case still sided with the employer. There have been a number of cases on the issue and many contentious lawsuits, especially in the intellectual property area. If a company is open about their policy, the expectation of privacy for the employees is diminished if not non-existent.

Employees, when in doubt, steer clear of trouble, avoid questionable communications. Don’t send anything that you would not want read by anyone other than the intended recipient. Today’s forensic technologies and journaling operating systems, record everything you do on your computer. Employers, I would recommend that you document your procedures and be transparent with your employees. Finally, IT should be well trained on potential ESI evidence spoliation.

 

Author

Adam Rubinger
Director of Discovery Management
arubinger@nightowldiscovery.com
(612)337-0448

Adam heads the Managed Services practice, providing a programmatic approach to discovery for both corporations and law firms. He offers guidance and assistance interpreting the many facets of electronic discovery and litigation support. Adam brings over 15 years of experience working with Fortune 500 corporations and top 200 law firms on large-scale electronic discovery projects.