Monitoring Employees Email Severely Restricted

Author:Mr Dan Or-Hof
Profession:Pearl Cohen Zedek Latzer
 
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In a 91 pages opinion, the National Labor Court laid down a clear set of rules on employers right to monitor their employees email messages. The rules impose severe restrictions on that right and employers should consider reforming their workplace policies accordingly.

The issue that was brought before the court was whether an employer may access employees email messages and submit them as evidence in the course of court proceedings brought by the employee against the employer. Typically, the employer wishes to present evidence obtained from the employee's email account, in an effort to dismiss the employee's claim for unlawful termination. However, a "Fruit of the poisonous tree" evidential rule under the Privacy Protection Act, prohibits submission of evidence obtained through invasion to privacy.

Chief Judge Nili Arad delivered the National Labor Court's opinion on two appeals from District Labor Courts that reached inconsistent decisions related to the employers' rights in that respect.

The court laid down the following principles:

In light of the employer's proprietary interest in the workplace and managerial prerogative, the employer should set a balanced policy for use of the corporate IT and email systems. The employer must bring the policy to the attention of the employees and must incorporate the policy into their personal employment contracts. A clear line should be drawn between an email account allocated by the employer to an employee and an employee private email account, such as a webmail account. An employer may allocate accounts to employees and designate them for work related purposes only ('professional purpose accounts'), or for personal purposes as well ('dual purpose accounts'), or for the employer's personal purpose only ('personal purpose account'). If the employer makes the employees aware of the e-mail monitoring policy, then the employer may monitor the traffic data and contents of professional purpose accounts. However, if an employee uses the mailbox for personal e-mail exchange, even if in violation of the corporate policy, then the employer...

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