We just got in this question, and while each situation is different, the quick answer is a resounding maybe. Our team of lawyers has experience fighting not only employment but also privacy issues, which gives us a very unique perspective.
Who owns the iPhone, Blackberry or laptop? Has the employer set policies and expectations? Employers are legally allowed to set policies that prohibit or limit personal use of company computers, and monitor the extent of employees’ personal computer use. Employers can discipline employees whose use violates company policy. In City of Ontario, Cal. v. Quon, 130 S.Ct. 2619 (U.S. June 17, 2010), the United States Supreme Court held that a city police department’s search of an employee ‘s text messages was reasonable, and did not violate the individual’s Fourth Amendment rights. Assuming that the officer had a reasonable expectation of privacy in his personal text messages, the Court found that the employer’s search was motivated by a legitimate work-related purpose, and was not excessive in scope.
Even if your emails are going to a private Yahoo! or Google+ email account, employees may not have an expectation of privacy if they are being read on work computers or phones.
The American Bar Association’s issued ABA Formal Opinion 11-459, which discusses the warnings that attorneys and law firms must give to clients regarding the risk of third parties gaining access to email and text communications with a client. Opinion 11-459 tells that attorneys must warn clients of the confidentiality concerns when sending “substantive” client communications via email, text and other electronic means: “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access.” Many of devices (computers, laptops, tablets, smart phones, etc.) are provided to clients from their employers. Many clients also have employer provided email addresses. But, many employers’ policies provide that they have a right of access to all employees’ computers, electronic devices, and e-mail accounts – regardless if it relates to an employee’s personal or private matters. If an employer has a right to access emails, there is no expectation of privacy and Attorney-Client privilege can be successfully challenged.
Not sure of your rights in your situation? Best to only read your email and texts on accounts you own from devices that you own. If it becomes an issue, call the right attorney.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at (216) 271-3742. The Spitz Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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