Privacy at the Work Place – Restrictions on Employer’s Rights to Monitor or Track Employee’s Mailbox
by Ady Nordman
On February 8th, the Israeli National Labor Court (Jerusalem) issued its decision in Tali Izakov. v. The State of Israel relating to an employee’s right to privacy and the employer’s to track and monitor his employees E-mail correspondences.
The court found that the employee’s right to privacy is not absolute but will not be infringed without proper prior actions on behalf of an employer seeking to track and monitor the employee’s mail correspondence. The proper steps vary in accordance with the mailbox type. In a strictly work related mailbox the proper steps for monitoring and tracking the correspondence are the mildest, stricter steps required in the mixed mail box and for an outer and private mailbox a request for monitoring or tracking any correspondence must be requested from the court.
In its decision the court laid down the rules that ought to be applied by an employer and an employee regarding the use of computers at work. Including the employer’s penetration to employees Mailboxes and the presentation of prints generated from those E-mail correspondences, as evidence in a legal proceeding.
The court held that the principal of privacy in the virtual sphere is the same as in the actual one. The employee hold the right to track and monitor his employees E-mail correspondences and the Employee has the right to privacy in these Mailboxes.
These rights ought to be balanced. The sought balance should be between the employer’s title to the computer and his prerogative to set boundaries for the use of the computer for work and private needs of the employee, and the Employee’s right to privacy at work while using the computer.
The employer must set up a clear policy and inform the employees about the allowed uses of the computers, differing the virtual sphere dedicated to work from the one dedicated to the employee’s private life. It is clear that the employer’s manifestation of his rights would be in good faith, loyalty and the fairness found in the base structure of the working relations, transparency and coupling principles.
Entering an employee’s E-mail correspondences, in his designates private Mailbox at work shall be done as a last resort and only under exceptional circumstances, in which the defense on the legitimate interests of the employer amount to justify the infringement of the employee’s privacy, including the existence of reasonable suspicion of criminal activity on behalf of the employee.
The employer must take other technological steps to prove unfit use in the information database. In case the policy does not come to the employee’s attention, the entrance to his Mailbox will not be allowed, as derives from the good faith, transparency, proportionality, likelihood and coupling principles.
The entrance to the employee’s private Mailbox will be allowed only after all less privacy infringing means were exhausted. The employee’s consent shall be in writing and its limited interpretation will cause its acceptance only in rare cases.
A Preliminary condition for the approval of the employee’s consent is that the employer shall explain to the employee about the all the details related to the use of the tracking technology, the times its being use, its purposes, the type of information it gathers, the frequency of the tracking and how and where the information will be kept.
The consent needs to be in writing and to be given in free will, awareness and knowledge. There are two sides to the waiver, the first, a preliminary consent to the employer’s policy, and the second is a specific consent for each infringing action. That action shall be in the presence of the employee, if he so wishes.
In a Mailbox designated strictly for work and matters associated with the job, the employer can monitor and track these Mailboxes. These actions are permissible only when subject to the legitimacy and the proportionality principal, the law and that the employer will inform the employee in advance about the policy.
If the header or the attached file of the E-mail indicating that the mail correspondence is not work related but rather personal, the employer can enter the content of that correspondence only with the consent of the employee.
The request for consent can be made only if the correspondences raise a strong fear that the employee is involved in an illegal activity and only after the employer exhausts all other means of tracking and monitoring that are less infringing. The consent needs to given in free will, awareness and knowledge to the employer’s policy, and for each infringing action.
In a “Mixed Mailbox” or a Mailbox that was designated to the employee’s personal use , the employer cannot use any means of monitoring or tracking the contents of the mail correspondences. Any such actions can be performed only in the case where extraordinaire circumstances occur. Such circumstances may be a strong fear that the employee is involved in an illegal activity and subject to the principles of legitimacy, proportionality, coupling, transparency and consent in free will, awareness and knowledge.
As in the designated strictly for work Mailbox, a preliminary consent to the employer’s policy, and a specific consent is in need. The specific consent in this matter divides, in the Mixed Mailbox the consent is to every act of penetration to the correspondence and in the private Mailbox the consent is to the preliminary actions of the monitoring and tracking.
If the employee does not give his consent the employer can appeal to the District Labor Court. An employer can appeal for a temporary disclosure injunction. The employer can appeal for permission to use the correspondence without getting the employee’s consent. The employee can also appeal to the District Labor Court and request an injunction restricting the employer from acting so.
In a Private and “External” Mailbox, the employer cannot track or monitor without an injunction from the court.
There are several required conditions for obtaining an Anton Pillar injunction:
Proving an alleged cause and a chance of claim; establishing reasonable suspicion or one of a close certainty that assets that are needed for the proceedings and are being held by the one the injunction is request against will be destroyed.
One more condition is added to both of the conditions mentioned above. The last condition derives from the principles of legitimacy and proportionality: establishing the claim that any destroyed asset will substantially burden the procedure in a manner that will seriously damage the appellant or harm the inquiry of the claim.
For the purpose of these rules, the court held that there is no difference between infringing the employee’s privacy by printing those E-mails or if they were found in the bin.