Striking a Balance Between Employer Business Interests and Employee Privacy: Using Respondeat Superior to Justify the Monitoring of Web-Based, Personal Electronic Mail Accounts of Employees in the Workplace

Authors

• Micah Echols

Abstract

Electronic mail ("e-mail") is a convenient and financially beneficial tool in the workplace. Although businesses that take advantage of e-mail have experienced many benefits, these same businesses also face a number of disadvantages. One such disadvantage is the legal liability that employers may face-under a vicarious liability theory-for the e-mail-related actions of their employees. Due to this exposure, nearly eighty percent of employers have turned to various methods of monitoring their employees, including direct e-mail monitoring. Traditionally, this type of monitoring has been limited to company, proprietary e-mail accounts, in which courts have routinely held that an employee has no reasonable expectation of privacy.

In response to the lack of privacy afforded company e-mail accounts, many employees choose to conduct their personal affairs via web-based, personal e-mail accounts that are typically available through Internet access provided by the employer. But web-based accounts may not isolate an employer from liability; most companies, therefore, seek the ability to monitor webbased, personal e-mail accounts as well.

Recent developments in monitoring technology available to employers allow for the monitoring of most web-based, personal e-mail accounts, such as "Hotmail" and "Yahoo!". Nevertheless, the same criteria that courts use to uphold the employer monitoring of employee e-mail accounts on company, proprietary systems will most likely have the opposite effect on the monitoring of web-based, personal e-mail accounts. As a result, controversy remains regarding an employer's possible liability for employees' activities on web-based, personal e-mail accounts that cannot be legally monitored.

This Article proposes that if courts use a respondeat superior approach, employers will be able to legally take advantage of the new technology and justifiably monitor employees' web-based e-mail accounts when they are used in the workplace. To explore the issue presented, Part Two will provide the relevant background, an explanation of how e-mail accounts work, and the perspectives of both employer and employee. Part Three will present four cases discussing the analysis courts have applied to the monitoring of employee e-mail in the workplace on company, proprietary e-mail accounts. Part Four will analyze issues related to web-based, personal e-mail accounts, such as new monitoring technology, the traditional privacy analysis as it relates to the new monitoring technology, and the respondeat superior approach to the issue of employer monitoring of employees' web-based, personal e-mail accounts in the workplace. Part Five will comment on methods through which employer and employee can maintain their respective positions while avoiding conflicts. Part Six will argue that clear guidelines should be adopted for e-mail monitoring, and that those guidelines should balance the interests of employers and employees.

Recommended Citation

Micah Echols, Striking a Balance Between Employer Business Interests and Employee Privacy: Using Respondeat Superior to Justify the Monitoring of Web-Based, Personal Electronic Mail Accounts of Employees in the Workplace, 7 Computer L. Rev. & Tech. J. 273 (2003)