Hampton Roads
Employment News
Volume 21 September 2009
In This Issue
Deleted Email?
Employee Privacy Rights
Contingent Workforce Assessment
 Delete Button
So You Think Your E-Mail Is Really Deleted?

What are the chances that you can ever erase an e-mail? No chance, says Attorney Matthew Effland. When you send e-mail, it's saved in many places, most of which you can't access. 

For example, Effland says, your e-mail is likely stored in:

  • Your computer's cache and e-mail outbox,
  • Your e-mail service provider's computers and/or corporate e-mail server
  • Your supervisor's backups
  • Your corporate mainframe
  • Your various backup drives
  • Your employer's backup systems

Then multiply that by two-your recipient's company is probably saving your e-mail in all the same places. And then add to that everyone you copied. Think there's any chance of erasing all those copies? The best assumption is that e-mail is never erased, says Effland.

Effland is a shareholder at the Indianapolis office of the national law firm Ogletree Deakins. His comments originally appeared in our sister publication, the HR Manager's Legal Reporter.
 
E-Mail Policies

Lots of employees think that e-mail is private, so be sure to have a policy that informs them otherwise. Consider the following:
  
 
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During slow times many firms have increased their use of technology in the work place.  Technology can increase productivity at all levels and is generally welcomed in the workplace. As employers it is vital we understand the implications of the technology we use and educate our employees regarding privacy and record keeping laws.  Ensure you have the proper policies in place regarding technology in the workplace.
 
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Do Employees Have a Right to Privacy?
 
It used to be easy, says Attorney Matthew Effland. If you spotted someone reading on the job, you just told them to go back to work. Now, they have headphones on-are they listening to an audio conference on HR compliance, music that relaxes them, or a digital book?

Unfortunately, you are going to have people who abuse your technology. They are going to send e-mails of the wrong nature, access sites they shouldn't, or simply spend the day doing things that aren't related to their jobs, Effland says. And when you try to discipline, they'll yell, "Constitutional privacy rights!"
 
It's Misunderstood!
How many of these outraged responses have you heard?
  • But it's my computer! It's sitting on my desk.
  • What I do from my home computer is my business!
  • You were listening to my private phone calls?
  • You can't go through my e-mail-it's private.
That's the kind of pushback HR managers are getting from employees, says Effland.
 
The 'Constitutional Right to Privacy'
 
Do employees have a constitutional right to privacy at work? Many employees think that they do. Here's an example from Effland.

Someone is stealing Subway� sandwiches from the refrigerator. To find the culprit, after hours you secretly go around to each desk looking for Subway wrappers.

You find them in Joe's office in his trash can, and the next day you discipline Joe. He says, "What are you doing going into my office? The door was shut; you can't do that!" In a government agency, that employee may be right; in private firms, however, probably not, says Effland.
 
Limiting Expectations in a Government Setting

As private citizens we have rights against "unreasonable search and seizure," and when we work in a government setting, we essentially have that same protection.

But that varies based on the job, Effland notes. To limit expectations in a government setting, figure out, based on the individual's job, what the expectation of privacy should be.

For example, the person who runs the ticket booth at the government parking lot has little expectation of privacy. Others share her booth. Anyone can look in. She has some privacy rights, but not many. On the other hand, the governor's chief of staff has a high expectation of privacy in his office.

Privacy in a Private Setting

For all employees not in public or government settings, there is no constitutional right to privacy at work, says Effland. It's easy-if you don't want the boss snooping, work somewhere else..

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