It is not uncommon to use e-mails and texts as casually as a regular conversation, however, once sent, those e-mails and texts could be saved in perpetuity. Under some circumstances, deleted e-mails could be revived by a computer forensic expert and the extra steps an employee takes to erase those e-mails may be revealed. New Hampshire is an employee at will state; meaning that both the employer and/or the employee may terminate the employment relationship with or without notice or cause. Inappropriate e-mails or texts could cost an employee his job.
If an employer has information that a worker is using the company e-mail to sexually harass a co-worker, the company under the federal and state discrimination laws would have an obligation to investigate the e-mail system. Likewise, if the employer is concerned that an employee might be leaving and plans to take certain company customers, the employer may decide to review the employee’s e-mails to see if he is, in fact, contacting customers or working with a competitor. There is no legitimate expectation of privacy in sending an e-mail through the company e-mail system, even if there is not a computer use policy within the employment handbook that expressly states no expectation of privacy.
However, it is a good idea for employers to have a computer use policy that expressly informs the employees that they do not have an expectation of privacy for two clear reasons: one is decrease the likelihood that employees will reveal deeply personal information in e-mail sent through the company e-mail system that management may later inadvertently monitor such as perhaps family turmoil unrelated to work; and the second is so that employees will have the common sense not to use the company’s computer e-mail system to make inappropriate e-mails ranging from being snarky to a customer to sexually harassing a co-worker.
While a text sent by an employee on his/her smart device is not as easily accessible to the company, the recipient of the text may show it to the company. Likewise, if litigation were to arise, those texts, along with e-mails, may be discoverable and upon threat of litigation, the company should take steps to attempt to preserve all e-mails and texts which could be discoverable in the litigation, irrespective of whether or not they are helpful, hurtful, or neutral to the interest of the company. The employee may have sent an e-mail or text that is discoverable for the litigation but also comments on his attraction to a co-worker or his irritation with a major customer, or perhaps a GIF (graphics interchange format) that at the time seemed humorous, none of which the employee would like his boss to learn about. If the e-mail or text was more professionally drafted the employee would not risk at a minimum embarrassment or a maximum loss of his job.
While some e-mails or texts between co-workers complaining about work conditions or their boss may be protected under the National Labor Relations Act, as “concerted activity”, most employees would prefer not to have a fight with the employer and if they decide to leave their employer to do so on their own terms. Obviously it is easier to find a new job when you are still employed. It is rare than an employee who has been fired that becomes ultimately victorious in a lawsuit is grateful that they had the opportunity to go through the court process. Most of us closely tie our self-perception of worth with our job and want to keep it or leave on our own terms. In summary, think before you click.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].