Does An Employer in Ohio Need to Warn Employees About Email Monitoring?
Full Question:
Answer:
Generally, if an e-mail system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from an employee's terminal to another company or from another company to the employee can be subject to monitoring by the employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer's favor.
Courts have found that employers are generally free to read employee email messages, as long as they're justified by a valid business purpose for doing so. Companies often reinforce these rights by adopting email policies telling employees that their email isn't private, and that the company is monitoring email messages. Some companies also require employees to sign a form acknowledging that their email isn't private. Even if the employer doesn't have an email policy, it still probably has the legal right to read employee email messages sent using its equipment and network. While not required by Ohio statutes, it is however the best practice is to have a written policy in place and distributed to employees.
If the company takes steps to protect the privacy of email (by providing a system that allows messages to be designated "confidential" or creating a private password known only to the employee, for example) or if the company assures employees that email is private, the employee might have a stronger expectation of privacy in the messages covered by these rules and therefore stronger legal protection if the employer reads private emails.
Invasion of privacy is the intrusion into the personal life of another, without just cause, which can give the person whose privacy has been invaded a right to bring a lawsuit for damages against the person or entity that intruded. It encompasses workplace monitoring, Internet privacy, data collection, and other means of disseminating private information. A non-public individual has a right to privacy from: a) intrusion on one's solitude or into one's private affairs; b) public disclosure of embarrassing private information; c) publicity which puts him/her in a false light to the public; d) appropriation of one's name or picture for personal or commercial advantage.
The federal and state statutes that govern eavesdropping require interception of a conversation. The "interception" of a "private communication" is not merely listening to a private communication but includes the means used to "acquire" the "private communication". “Intercept” means to acquire the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. If the person is intercepting a private conversation, the federal law provides an exemption if done under the with the terms of a court order, statutory authorization, or certification under federal wiretapping law.
For further discussion, please see:
http://www.cosemindspring.com/legal/liabilities-within-workforce/privacy
Please see the following OH statute:
2933.52 Interception of wire, oral or electronic communications.
(A) No person purposely shall do any of the following:
(1) Intercept, attempt to intercept, or procure another person to intercept or attempt to intercept a wire, oral, or electronic communication;
(2) Use, attempt to use, or procure another person to use or attempt to use an interception device to intercept a wire, oral, or electronic communication, if either of the following applies:
(a) The interception device is affixed to, or otherwise transmits a signal through, a wire, cable, satellite, microwave, or other similar method of connection used in wire communications;
(b) The interception device transmits communications by radio, or interferes with the transmission of communications by radio.
(3) Use, or attempt to use, the contents of a wire, oral, or electronic communication, knowing or having reason to know that the contents were obtained through the interception of a wire, oral, or electronic communication in violation of sections 2933.51 to 2933.66 of the Revised Code.
(B) This section does not apply to any of the following:
(1) The interception, disclosure, or use of the contents, or evidence derived from the contents, of an oral, wire, or electronic communication that is obtained through the use of an interception warrant issued pursuant to sections 2933.53 to 2933.56 of the Revised Code, that is obtained pursuant to an oral approval for an interception granted pursuant to section 2933.57 of the Revised Code, or that is obtained pursuant to an order that is issued or an interception that is made in accordance with section 802 of the “Omnibus Crime Control and Safe Streets Act of 1968,” 82 Stat. 237, 254, 2510 to2520, as amended, the “Electronic Communications Privacy Act of 1986,” 100 Stat. 1848-1857, 18 U.S.C. 2510-2521 (1986 ), as amended, or the “Foreign Intelligence Surveillance Act,” 92 Stat. 1783, 1801.11 (1978), as amended;
(2) An operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication to intercept, disclose, or use that communication in the normal course of employment while engaged in an activity that is necessary to the rendition of service or to the protection of the rights or property of the provider of that service, except that a provider of wire or electronic communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks;
(3) A law enforcement officer who intercepts a wire, oral, or electronic communication, if the officer is a party to the communication or if one of the parties to the communication has given prior consent to the interception by the officer;
(4) A person who is not a law enforcement officer and who intercepts a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given the person prior consent to the interception, and if the communication is not intercepted for the purpose of committing a criminal offense or tortious act in violation of the laws or Constitution of the United States or this state or for the purpose of committing any other injurious act;
(5) An officer, employee, or agent of a communications common carrier providing information, facilities, or technical assistance to an investigative officer who is authorized to intercept a wire, oral, or electronic communication pursuant to sections 2933.51 to 2933.66 of the Revised Code;
(6) The use of a pen register in accordance with federal or state law;
(7) The use of a trap and trace device in accordance with federal or state law;
(8) A police, fire, or emergency communications system to intercept wire communications coming into and going out of the communications system of a police department, fire department, or emergency center, if both of the following apply:
(a) The telephone, instrument, equipment, or facility is limited to the exclusive use of the communication system for administrative purposes;
(b) At least one telephone, instrument, equipment, or facility that is not subject to interception is made available for public use at each police department, fire department, or emergency center.
(9) The interception or accessing of an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public.
(10) The interception of a radio communication that is transmitted by any of the following:
(a) A station for the use of the general public;
(b) A governmental, law enforcement, civil defense, private land mobile, or public safety communications system, including a police or fire system, that is readily accessible to the general public;
(c) A station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services;
(d) A marine or aeronautical communications system.
(11) The interception of a radio communication that relates to a ship, aircraft, vehicle, or person in distress.
(12) The interception of a wire or electronic communication the transmission of which is causing harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of that interference.
(13) Other users of the same frequency to intercept a radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of that system, if the communication is not scrambled or encrypted.
(C) Whoever violates this section is guilty of interception of wire, oral, or electronic communications, a felony of the fourth degree.
