Employees of the City of Los Angeles Law Firm. Hydee Feldstein Soto claims Feldstein Soto searched the emails of employees who unknowingly spoke out about office issues.
Whether Feldstein-Soto viewed the emails without permission has not been confirmed, and her spokesperson said recent allegations made to the city are untrue. But if she did search employee emails, the law is unclear as to whether that would violate anything.
Legal experts say this is far from the norm for most employers when it comes to monitoring employee emails.
Experts say there’s no clear black and white line on what limits employers can review communications from employees’ work email accounts. If a personnel or legal issue arises, such as an allegation of harassment, the employer may have significant leeway to search for information to determine whether the allegation is true. Alternatively, if a public records request involves a public employee’s email, the employer generally has the right to review it.
“If anything, if an employer were to eavesdrop on certain communications, private emails and the like, that could be a violation of privacy rights under the California Penal Code,” said Los Angeles attorney Todd Friedman.
Friedman said employees may argue that any communications with attorneys are confidential and intercepting those messages would constitute a violation. But as far as he knows, there’s no hard line that makes it illegal or legal for employers to review work emails.
Catherine Fisk, a professor at the University of California, Berkeley School of Law, said an employer’s intent when reviewing employee emails is key to determining whether a breach occurred. Fiske said this type of search might be reasonable if an employer is checking employees’ emails while they’re on vacation and transferring work to someone else. But searching employees’ emails just to spy on them may not work, she said.
“Whether it’s in the public or private sector, if an employer reads emails solely for the purpose of spying on employees, then the employer may be violating the rights of its employees,” Fiske said.
For example, in the 2010 Ontario Supreme Court case v. Quon , the high court ruled in favor of a police chief who charged an employee with violating regulations and using a transcript sent from a work pager. The employee conducted a search. The employee argued his privacy rights were violated; the court ruled the search was reasonable.
Fisk said a more obvious privacy violation would be if an employee’s personal email was searched, even if the employee accessed the email from a work computer.
“A private Gmail account — just because an employee accesses it from an office or work computer — doesn’t become less private,” she said.
