In a recent case, the Massachusetts Superior Court ruled that there was no expectation of privacy in email sent over an office network. A Superior Court ruling is by no means the last word on this issue but it does provide some guidance.
The case involved the Town of Falmouth (Falmouth Firefighter’s Union v. Town of Falmouth) and its use of Gmail accounts for its employees. The town purchased the domain names that were used for the accounts.
The employees had control over their own accounts and could choose to delete mail but the Town was the account administrator. The Town did not have a system for saving emails.
Certain emails in an employee account were copied and reviewed as part of the defense of a sexual harassment lawsuit brought against the Town by a former employee. The firefighter whose emails were accessed by the Town filed a lawsuit claiming breaches of his privacy rights under state law.
The Superior Court ruled that the firefighter has no expectation of privacy in regard to the emails sent over the Town’s system without assurances that the communications were private or confidential. Additionally, the Court noted that the employee voluntarily communicated the information over the Town’s email system. The ruling was independent of the employers email policy and stated a general rule regarding the expectation of privacy in the emails in this particular case.
We have written about the importance of employee handbooks. Employers should document their policies regarding the confidentiality of electronic information send or stored on their networks. We prefer this approach to reliance on employee privacy expectations that could be interpreted differently depending on the exact situation in which the dispute develops.
In the Town of Falmouth case, The Town’s employee handbook provided that computer email was intended for “business use” and the Town maintained the ability to “access any messages left on or transmitted over the system.” The policy went on to state that employees should “not assume that such messages are confidential”. While the Court did not feel the need to rely on the handbook for its decision, we think setting out rights in your employee manual is the better approach.
If your Employee Handbook does not address email privacy issues on the business network or the growing issues surrounding the use of social media in the business context, call Gogel & Gogel to update your policies and procedures before there is a dispute.
