Companies, workers should be wary of e-mail
Published 03/20/01

Many employees as part of their job have access to a company computer and they may be authorized to use e-mail and the Internet for other means such as research. While the computer can be a productive tool in enhancing the employee’s performance, some employees abuse it. For example, an employee may use the company computer for Internet access for purely private and purient purposes, such as accessing a pornographic website, or an employee may use the e-mail for purposes of harassing co-employees or others.

Therefore, it is prudent for an employer to consider notifying employees that their company computer usage may be monitored by the employer accessing their computer to see what Internet sites they have gone onto and the e-mails they have sent, prepared, and/or received. An employer should have a written policy that clarifies to the employee the use of the company computer is solely for company purposes and the employer reserves the full right to access that computer to determine the employee is complying with the policies and procedures. The employee should specifically be made aware in writing that the e-mail messages contained on the computer are all available for monitoring by the employer. It may be appropriate that the employee actually sign a consent to such monitoring. This can be made as a condition of their employment or continued employment with the company, assuming that they are not under contract and are an employee-at-will at that time.

While there are federal and New Hampshire wiretap statutes, they generally apply to actual interception of electronic transmissions. For example, the recording of a telephone conversation while it is occurring without the consent of the other is a crime in New Hampshire. It is highly unlikely that an employer would be found by a Court to be violating those wiretap acts by reviewing its own computer, not for ongoing transmissions, but for records of those transmission when the employer has advised the employer that they should be thought of as company property. However, the obtaining of the consent by the employee removes any issue as to wiretapping.

Employers should also educate their employees of the fact that e-mail transmissions do not simply disappear because the employee has hit the delete button. The employee should take the same care preparing internal and external e-mails as they would in writing a printed memo or letter understanding that, if at some point the topic of that e-mail is pertinent to some future litigation, the e-mail may be able to be recovered in discovery, notwithstanding the fact that the sender and recipient may think they have "deleted" that messages here.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.