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| Looking over your shoulder |
July 1, 2001 |
By David Zgodzinski
Employers have the legal right to monitor employee e-mail traffic, but that fact doesn't quite sidestep the moral and ethical questions such surveillance raises. In the U.S., recent court judgments reinforce the notion that employers can read any e-mail stored on the company's computers. Case in point: Richard Fraser was an insurance representative working in Pennsylvania for Nationwide Mutual Insurance. He had his own office but used the company's computer system. The company fired Fraser after it discovered e-mails he had written to competitors, offering his services.
Fraser sued, claiming that Nationwide had violated the Stored Communications Act, a statute of the Electronic Communications Privacy Act, which covers electronic messages in storage on disk or other media. But in March, the judge ruled in favour of the company, stating that stored communications are only protected if they are unopened. Fraser had sent the e-mail and then left it on the company hard drive, making it fair game for company snoops.
In Canada, a key legal precedent regarding e-mail surveillance is the case of Regina vs. Weir. The verdict in this criminal case held that police conducting a criminal investigation must obtain a warrant in order to access e-mail. But while police are constrained, employers apparently are not.
Employers have the right to read e-mail on a company's computer system, says Marc-Andre Coulombe, a litigation partner with law firm Stikeman Elliott's IT group in Montreal. "There isn't much legal precedent thus far in Quebec, only a case settled by a labour arbitrator, not a Superior Court judge." That decision, citing "management rights," favoured the employer.
Coulombe references a story that appeared in Sherbrooke's La Tribune newspaper pointing out that 74 per cent of employers in Quebec monitor their employees in some way, either by listening to phone conversations, reading e-mail or even using video cameras. "I advise all major clients to notify their workers in writing that the company reserves the right to read e-mail, scan hard disks and monitor Internet connections," he says. "A written statement makes it clear to employees what the rules are and makes it easier for the employer should a dispute arise later."
While employers have the legal right to examine e-mail, Coulombe adds,they forfeit that right the minute they make a written statement to their workers stating they will not engage in such surveillance.
Joseph Conforti, a lawyer with Goodmans in Toronto, notes that Ottawa's Personal Information Protection and Electronic Documents Act (Bill C-6) may complicate the issue. It states that, while employers have the right to monitor, it might constitute an invasion of privacy if they were to stumble upon an employee's personal record sent via e-mail. So they should disclose their monitoring to employees. The law currently applies to federally-regulated companies but will, in three years, also cover provincially-regulated firms. A high-profile surveillance controversy occurred in February of 1998 when the Canadian Auto Workers (CAW) was in difficult contract bargaining with Canadian National (CN) Railways.
"We suspected that the company was monitoring the e-mail of union representatives," says Abe Rosner, a CAW official. "One union representative had proof that some of his e-mail had been opened: the e-mail eavesdropper apparently forgot to toggle the read/unread button back to unread." CN conceded it had been inspecting some employee e-mail but wouldn't specify if its focus had been on union reps. Mark Hallman, a company spokesman, says that after the incident CN agreed to clarify its policy on notifying personnel about monitoring.
Of course, unions can themselves be torn over the surveillance issue. As CAW's Rosner notes, in some cases unions may be in the painful position of having members' interests pitted against each other. Companies may be asked to monitor e-mail when one worker alleges that messages from another worker constitute sexual harassment, for example.
That said, unions are beginning to demand some privacy in the workplace as part of their contract negotiations with employers. At CN, for instance, the CAW has asked that one unmonitored phone line be provided in an office for workers' personal conversations.
These initiatives haven't progressed very far, according to Rosner, but such issues are increasingly coming to the forefront of business relations.
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