Employees’ Expectation of Privacy with Work E-Mail Accounts



Employees are more frequently using their work e-mail accounts to conduct personal business. In recognition of this trend, many employers, pursuant to their computer use policies, permit limited incidental personal use of these accounts and/or other computer hardware. That being said, when work and personal business are conflated into one e-mail account, it can be unclear what, if any, expectation an employee should have with regard to the privacy of his/her personal e-mails. For example, when a personal e-mail sent via a work account contains information relevant to a pending disciplinary matter, the employee has an interest in keeping that e-mail private and the employer has an interest in using it as evidence. This memorandum summarizes a recent court decision addressing this issue. It also provides guidance on how employers can maintain their right to access and use any e-mail sent through a work e-mail address.

In United States v. Finazzo, the Eastern District of New York confirmed the recent court trend that an employee has no reasonable expectation of privacy in his/her work e-mail account even when, for example, it includes personal, privileged communications with an attorney. In this case, Finazzo communicated with his private attorney through Finazzo’s work e-mail account. Included in those e-mails was information relevant to Finazzo’ s involvement in a kickback scheme in which he received a portion of profits from his employer’s purchases from a company that he co-owned. In determining whether the e-mails exchanged by Finazzo and his attorney were attorney-client privileged, the court applied a four factor test and evaluated whether: (1) the employer’s policies allowed or prohibited personal use; (2) the employer monitored use of the employee’s e-mail; (3) third parties had a right of access; and (4) the employer had given notice to the employee or the employee was aware of the employer’s use and monitoring policies. The court ultimately concluded that, based upon the employer’s computer use policy, its warning to employees that they “should have no expectation of privacy when using Company Systems,” and Finazzo’s acknowledgment of the policy and its warning, the e- mails were not privileged.

The Finazzo decision provides guidance to employers with regard to their computer use policies. If an employer wishes to have unfettered access to employee work e-mail accounts, it is essential that the employer adopt a computer use policy pursuant to which it expressly reserves the right to review work account e-mails and makes clear that employees have no expectation of privacy when using the employer’s e-mail system. In other words, the employee’s personal use of a work e-mail account is at hislher own risk. An employer should also ensure that its employees are familiar with (or at least aware of) the computer use policy. For example, in Finazzo, an employee’s written acknowledgement that he was familiar with the Employee Handbook, which contained the relevant company computer use policy, defeated his claim that he possessed a reasonable expectation of privacy in e-mails sent to and from his work e-mail account. Using a pop up window that requires employees, prior to logging in, to acknowledge the existence of and their obligation to comply with the employer’s computer use policy may also be an effective way of satisfying the last prong of the four part test set forth above.

Finally, if an employer chooses to adopt a policy whereby it reserves the right to monitor employee work e-mail accounts, it should take advantage of that right. The Finazzo court warned that an employee’s claimed expectation of privacy would be considered less reasonable where there is evidence that the employer actually monitored the e-mail system in accordance with the computer use policy (as opposed to reserving the right, but not invoking it). The courts disagree with respect to the significance of employer monitoring, with some holding that an employer’s failure to do so does not give employees a reasonable expectation of privacy and others concluding that it does. Thus, in order to preserve its unfettered access to and use of all work e-mails, an employer would be best served to periodically monitor employee work e-mail accounts, provided that its policy reserves the right to do so.

An employer wishing to adopt or modify its computer use policy may have to first negotiate with its unions. We recommend that employers seek legal advice prior to implementing a new policy or changing an existing one.

If you have any questions regarding computer use policies and/or would like us to review your policy and practices, please contact us.


© Lamb & Barnosky, LLP 2013