Your employer can certainly read your email when the employer supplied the email and told you that it was reading your email. If the employer did not not tell you it was monitoring your email, one potential cause of action is invasion of privacy.
KENTUCKY
In Kentucky, invasion of privacy has four separate causes of action. McCall v. Courier-Journal and Louisville Times Company, 623 S.W.2d 882, 887 (Ky. 1981). The most likely of the four causes of action is “unreasonable intrusion upon the seclusion of another.” While Kentucky courts have not had a case concerning email privacy, the Kentucky Court of Appeals addressed whether a police officer had a reasonable expectation of privacy in a Facebook post made from his home computer. Pearce v. Whitenack, 440 S.W.3d 392, 402 (Ky. Ct. App. 2014). The Kentucky Court of Appeals concluded that he did not. Id. Further, the Kentucky Court of Appeals stated, “as with all internet communications, Pearce ran the risk that even a posting or communication he intended to remain private would be further disseminated by an authorized recipient.” Id.
FEDERAL LAW IN OTHER STATES
Some Federal courts in other states have specifically addressed employee email privacy with the following four tests:
1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005).
BEST PRACTICE
Kentucky courts seems to be taking a much more employer-friendly approach than some courts. However, the law could change if the issue is brought before Kentucky courts. Employers should have policies in their handbook or other employee documents if they intend to look at employees’ emails. Please contact me if you are an employer and need policies in place to protect you from employees’ invasion of privacy claims.
ABOUT THE AUTHOR:
Julie Tennyson is licensed to practice law in Kentucky, Tennessee, and Georgia and is a registered patent attorney. She focuses her practice on intellectual property, employment, corporate, and litigation. Her email is jtennyson@marcumtennyson.com and her phone number is 270-534-5135. Her website is marcumtennyson.com.