In the 2001 article, “Employee reactions to electronic performance monitoring,” Alder described organizational desires to use electronic means to measure employees as an understandable extension of the motivations for traditional supervision (Alder, 2001). Smith (2009) demonstrates the extent of electronic monitoring,
The American Management Association’s 2007 annual review of workplace monitoring and surveillance reported that 84% of employers have e-mail-use policies in place, 43% engage in some active form of e-mail monitoring, and 28% have terminated employees for inappropriate e-mail use (American Management Association, 2007). (Smith, 2009, p. 33)
Smith further explains that, “courts have consistently supported the rights of employers to monitor employee e-mails (Muhl, 2003; Rustad & Koenig, 2003)” (Smith, 2009, p. 34). When operating within the bounds of law and policy, organizational monitoring of employees mitigates risks posed by lawsuits (by providing a record of conversations that can be verified) while, simultaneously exposing the business to a risk of lawsuits (from employees who feel their rights have been violated). Businesses must balance these competing risks. An examination of the case of Smyth v. Pillsbury provides an example of the issues organizations face when monitoring employee e-mails (Smyth v. Pillsbury, 1996).
In 1996, the United States District Court in Pennsylvania dismissed a wrongful discharge claim filed by Michael Smyth against the Pillsbury Company. (Smyth v. Pillsbury, 1996) Smyth had sent unprofessional e-mails from his private address to his supervisor’s work address. As Smith (2009) describes, “One message allegedly referred to the firm’s sales management team with a comment to ‘kill the backstabbing bastards.’ Another e-mail labeled a company social occasion as ‘the Jim Jones Kool-Aid affair’” (Smith, 2009, p. 36). Pillsbury Company policy stated that e-mails were confidential. However, the company dismissed Smyth for unprofessional conduct. Smyth’s legal claim asserted that he was wrongfully terminated in violation of an expectation of privacy. The court, in ruling against Smyth, stated that Smyth’s decision to transmit the e-mail was voluntary and that,
[B]y intercepting such communications, the company is not, as in the case of urinalysis or personal property searches, requiring the employee to disclose any personal information about himself or invading the employee’s person or personal effects. Moreover, the company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments. (Smyth v. Pillsbury, 1996)
Smyth v. Pillsbury represents one of the earliest cases involving company monitoring of e-mails and employee privacy rights (Smith, 2009). Pillsbury Company continued to utilize e-mail monitoring to reduce business risks and the case established a precedent that has been consistently upheld by the courts (Smith, 2009).
When using company assets, employees generally do not have a reasonable expectation of privacy. As shown by the case of Smyth v. Pillsbury, even in cases where a private e-mail account interfaces with a monitored business e-mail system, the employee should not have an expectation of privacy. As Smith (2009) states, “It remains likely that employees (particularly those in the United States) will find weak legal protections when it comes to privacy of electronic messages” (Smith, 2009, p. 46)
Alder, G. S. (2001). Employee reactions to electronic performance monitoring: A consequence of organizational culture. Journal of High Technology Management Research, 12(2), 323. Retrieved from http://ezproxy.library.capella.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=5424311&site=ehost-live&scope=site
Smith, W. P., & Tabak, F. (2009). Monitoring employee E-mails: Is there any room for privacy? Academy of Management Perspectives, 23(4), 33-48. Retrieved from http://ezproxy.library.capella.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=45590139&site=ehost-live&scope=site
Smyth v. Pillsbury Co., 914 F. Supp. 97 – Dist. Court, ED (Pennsylvania 1996).