Personal or business e-mail—what’s the big difference?
Presidential candidate Hillary Clinton thinks it’s a significant distinction now, after having been criticized for using a personal e-mail account for official purposes while serving as secretary of state. Her apology resonated with many people, said Phillipe Weiss, an attorney at Seyfarth Shaw in Chicago and managing director of Seyfarth Shaw at Work, speaking with SHRM Online.
The consequences of not keeping personal and business e-mail separate provide a lesson “we all should take to heart,” he remarked. Even though national security is not at stake in most jobs, there are reputational and legal risks in commingling work and personal communications.
Age-Related Jokes
One common slip-up is when age-related jokes are shared on business e-mail and colleagues take offense.
Weiss recalled one employee who sent an e-card with vultures overhead and dancing skeletons to a friend who was turning 65. It was mistakenly sent from his business e-mail to everyone in the company, including a new CEO who had just turned 65. The sender came close to losing his job.
Inspiring Thoughts of the Day
Another worker regularly forwarded inspiring thoughts of the day from her business e-mail to co-workers and friends.
One was about sharing your passion. Unfortunately, the bottom of that e-mail also contained confidential marketing plans.
“If you do not separate out the messaging, you create risks,” Weiss said.
Trash Talking
Does trash talking about someone else’s favorite sports team cross the line into making a business e-mail too personal?
Probably not, within reason. But if trash talking spirals out of control to include bad-mouthing someone’s neighborhood, friends, national origin or religion, the sender is skating on thin ice, Weiss cautioned.
“I’m not saying don’t talk about sports,” he said. Just “be careful when trash talking.”
And if an employee is spending hours and hours e-mailing buddies about fantasy football, that becomes a performance issue, Weiss noted.
Attorney-Client Privilege
In litigation, business e-mails may have to be handed over to the other side.
A request via business e-mail for legal advice on a work-related case risks compromising the attorney-client privilege—which typically keeps communications between an attorney and client confidential—because the sender has no reasonable expectation of privacy with the e-mail.
“Employees may be viewed as having consented to allowing the employer to read and use their e-mails simply based on having elected to send or receive the communication from a work-provided e-mail account,” explained Peter Gillespie, an attorney with Fisher & Phillips in Chicago. “In some states, attorneys for the employer may even be allowed to read and use e-mails that an employee sent to his or her own attorney, if the employee communicated with counsel over a work-provided e-mail account.”
Just using personal e-mail for personal purposes may not be enough to preserve the privacy of a conversation; it may be necessary to use one’s personal laptop as well. That’s because if an employee uses personal e-mail through a company-issued laptop to talk to an attorney about suing an employer, a duplicate cache of e-mails may be created on the company’s device, noted Philip Gordon, a shareholder at Littler in Denver and co-chair of the firm’s Privacy and Background Checks Practice. In one case with these facts (Stengart v. Loving Care Agency Inc., A-16-09 (2010)), the New Jersey Supreme Court said the company’s access of the e-mails was improper, but Gordon described the ruling as “an outlier.”
NLRA Rights
While it’s often a bad idea for employees to use business e-mail for personal reasons, the National Labor Relations Act (NLRA) prohibits an employer from banning employees from using corporate e-mail for nonbusiness purposes during nonwork hours. That type of protected communication could involve union organizing or an NLRA complaint, Gordon observed.
Personal E-Mail Streaming into Business E-Mail
One disturbing trend: Employees increasingly are configuring their work computers so that personal e-mails are uploaded to the corporate e-mail inbox, Gordon said.
When an employee is terminated, sometimes he or she will forget to change the configuration back. So, an employer opening up the corporate e-mail inbox will see the person’s personal e-mail.
The first time this happens, it’s likely OK, as it’s unintentional, Gordon said. But if the employer continues to monitor the person’s personal e-mail beyond that, it risks violating the federal Stored Communications Act, he cautioned.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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