(Elements from shutterstock)

Dilemma of the Month: Snooping on Employee Email

Back Q&A Nov 2, 2017 By Suzanne Lucas
I have an employee who hasn’t been performing well. She always has an excuse. Last week, she was out sick again and I needed a report that I know she’d received from a client. I tried to call her, but she didn’t answer. So, I asked IT if I could get the report from her email, and they gave me access to her inbox. I found the report, but curiosity overcame me, and I opened a few other emails with subject lines that caught my eye. Turns out that my employee has been doing a lot of non-work related things at work. I feel totally guilty — I snooped. Is this legal? Is it moral? What do I do with this information?

If it was her work email on a work computer, which it sounds like it was, and since your IT department was able to give you access, then you’re probably legally good. Everyone should always assume that 100 percent of their work computer usage is monitored, even if employees are accessing their private email account.

Most companies and most managers don’t care one whit about the drama in your family that unfolds on your private email, but if you choose to log in to your professional account, that becomes something the company can see. The courts have consistently held that companies (i.e. managers) have the right to read their employees’ emails — even in employee-friendly California.

So, legally you’re all good, unless your company has specifically promised employees that they won’t monitor such things. It’s doubtful that they would. After all, why would they want to give up that right? (Although, I would never work for a “bring your own device” company that couldn’t guarantee my private things would stay private on my own laptop and phone.)

But let’s talk about the moral and practical side of things. Do I like managers snooping through their employees’ emails? No, I do not. Do I like employees feeling like they have no real privacy at work? No, I do not. Do I think what you did was appropriate? Yes, I absolutely do.

Here’s the difference: You didn’t set out to snoop. You were dealing with a very real problem. Your employee was not available and you did the most logical thing. The fact that she had subject headings that indicated she had been behaving inappropriately at work is her fault, not yours. In fact, when I was managing a team, our group’s admin had access to everyone’s email accounts for this very problem. Maybe when she got bored she read everyone’s emails, but I doubt it. And most work emails are boring.

So, how should you handle knowing this? I would recommend that when your employee gets back to work, after her sick day, call her in for a meeting. Say, “Jane, I’ve noticed that your quality of work has suffered lately.” Detail some areas where you think she should be performing at a higher level.

Then continue, “Yesterday, when you were out sick, I needed a copy of a report from a client. I tried to reach you at home, but you were unavailable. I asked IT to give me access to your email so I could retrieve the report. I found the report, but I also noticed you are spending a great deal of time doing non-work related tasks. I think I may have found the reason behind your poor performance. I need you to spend all your work time on work-related tasks. Is that something you can do?”

The correct answer is, “Yes.” But the answer you’ll probably get is, “How dare you invade my privacy?” — in which case you say, “There are no rights to privacy on company-provided computers and email accounts. Now, I need you to spend all your work time on work-related tasks. Is that something you can do?”

Repeat the last two sentences until she either gives up and says yes, or gives up and says no. If she says no, then it’s time to start working on an exit plan, but most likely she will say yes. Then monitor her performance closely. If necessary, begin a formal performance improvement plan. The focus should be on actual end result performance, not email, of course. Because the problem is not email — the problem is performance. So, keep your focus there.

But don’t feel guilty. You did the right thing. She probably needed a good reminder that work is for working.

One more thing: Document the heck out of this conversation. Send her an email saying, “As we discussed…” and then detail the conversation. You may need it in the future. 

Have a burning HR question? Email it to evilhrlady@comstocksmag.com


Millie (not verified)November 2, 2017 - 8:06am

As a new teacher in the State of Massachusetts on probationary status (during the first 3 months after hire). I unfortunately became sick with a mental health issue, and I had to be hospitalized for a few weeks. Before I am allowed back to work, my new employer wants me to see a psychiatrist of their choosing for a mental health evaluation. I am ok with this request (Fit To Return To Work - Mental Health Evaluation), and I plan to comply. However, my employer also wants me to sign a release giving their psychiatrist full access to all of my recent medical hospital records - specific to my recent mental health issue - including confidential mental health records, records from my social worker in the hospital, and drug/alcohol tests blood and urine - drawn during my hospital stay. My new employer wants these medical releases signed by me asap, and have me send them to their psychiatrist so he can read my records PRIOR to my appointment with him (for my "Fit to Return to Work Mental Health Evaluation). My employer states, if I do not sign these releases and/or go to the mental health evaluation appointment with their physiologist, my employment will be terminated. Do I have to sign these medical releases? The medical releases have 2 sections. One section is a "general" section for "general basic information" ; the Second section of the medical release specifically states that I must provide AN ADDITIONAL signature to release my "sensitive" information on Mental Health/Behavioral Information and Alcohol or drug testing information. Can I simply sign the general release section and NOT sign the release for the second section - "sensitive "information? Please advise. What do I do? Can they terminate my employment if I do not sign these "sensitive" releases?
Thank you. Millie

Mabel (not verified)November 2, 2017 - 12:18pm

Millie, I'm not an HR expert, or an employment lawyer, but I don't think the psychiatrist can legally share your health information with the employer. He can only use it make a determination whether you're fit to go back to work and then advise them whether you are or not. But I'm not 100% sure--you might want to consult with an employment attorney.