Law is fuzzy regarding employer's ability to search employee emails

Law is fuzzy when it comes to employer’s ability to search employee emails

Aug. 14, 2024 3 AM PT

An employee of Los Angeles City Atty. Hydee Feldstein Soto alleged that Feldstein Soto searched emails of employees who had been vocal about problems in the office without their knowledge.

Whether Feldstein Soto has reviewed those emails without permission has not been verified, and her spokesperson said the allegations, which were recently filed with the city, were untrue. But if she did search through staff emails, the law doesn’t clearly state whether that would have violated any rules.

Law experts said that’s true of most employers when it comes to their oversight of employee emails.

There aren’t clear black-and-white lines when it comes to an employer’s limitations to review staff communications on a work email account, experts said. If a personnel or legal issue has arisen, such as a harassment allegation, an employer may have significant leeway to search messages in an attempt to determine whether the claim was true. Or if a public records request involves emails from a public employee, an employer is typically entitled to a review.

“If anything, there may be a violation of a right to privacy under the California Penal Code if the employer is eavesdropping on certain communications, private emails and stuff like that,” Los Angeles attorney Todd Friedman said.

An employee could argue that any communications with an attorney remains confidential and that an interception of those messages would be a violation, Friedman said. But to his knowledge, there’s no hard boundary that would make it illegal or legal for an employer to review work emails.

UC Berkeley School of Law professor Catherine Fisk said that an employer’s intention when reviewing an employee’s email is key to determining whether a violation has occurred. If an employer reviewed a staffer’s email while they were on vacation to offload work to someone else, Fisk said, that type of search may be justified. But searching an employee’s email simply to surveil them probably would not be, she said.

“Whether it’s in the public sector or the private sector, the employer potentially invades an employee’s right if it reads email for no purpose other than to spy on the employees,” Fisk said.

In the 2010 Supreme Court case of the City of Ontario vs. Quon, for example, the high court ruled in favor of a police chief who searched text transcripts sent from an employee’s work pager after suspecting that the employee had violated rules and was using the pager mostly for personal messages. The employee had argued that his privacy rights had been violated; the court ruled that the search was reasonable.

Fisk said a clearer privacy violation would be if an employee’s personal email was searched, even if the employee accessed that email from their work computer.

“A private Gmail account — just because the employee accesses it from their office or their work computer — doesn’t become less private,” she said.