My employee is sending threatening e-mails from my company. What are the laws governing this?



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Question:

I have a small business in New Jersey. I am concerned about one of my employees. I’ve heard from some of my other staff that he is sending threatening emails to his ex-wife through our email system. I don’t have any actual evidence of this, and I’m reluctant to confront him on the subject both because he has a temper and because I’m not certain what my rights are in regard to employee use of our email, when the emails are not work related. Everyone, including myself, uses the email to send personal emails as well as work emails, so he would not be violating any policies by sending personal emails. Please advise what I should do. Thank you. Does it matter if employees internet usage is not always work related?

 

Answer:

Good news: you have the right to examine his email. Bad news: you may even have an obligation to do so, and you may be opening your company up to liability if you do not. Your state, New Jersey, is in the forefront of imposing this duty, but since they found the duty in a document followed in many states, it may be (or be becoming) a more generally applicable doctrine.

Here’s how it works: first, unless you have actually put out a firm (written) policy to the contrary, it’s beyond dispute that you can access employee emails sent through work or over your network, regardless of whether they are business-related or not. Only if you’ve gone out of your way to create an enforceable privacy right or expectation on behalf of your staff in their emails would you be unable to do this. Let’s assume that you haven’t done this.

In a very influential legal document called The Restatement (Second) of Torts, Section 317, it says (paraphrase) that an employer needs to exercise reasonable care to prevent employees from harming third parties, if the employee is using the employer’s equipment and the employer knows or should knows of the need to exercise care to safeguard others. The employee is using your computer, your network, and your company-provided email. You’ve heard that he’s threatening his ex-wife, and you are clearly aware that the man has a violent temper—you said you’re reluctant to confront him for that very reason. You also have the ability to very easily and legally check if he’s in fact sending threatening emails since his email internet usage is through the company networks. Under the circumstances, you might be found to have a duty to check (and, if necessary turn the results of your investigation over to the police); if you don’t, and the ex-wife suffers injury, your business could be held liable.

In a 2005 case called Doe v. XYC Corp., a NJ court followed the logic above to find that an employer who had knowledge that an employee was viewing child pornography, including pornographic images of his stepdaughter, had a duty to act. Obviously, that case is not quite parallel to your situation, and involves about the worst set of facts possible (not only in terms of child sexual abuse, but in terms of how much evidence the company had and ignored), but you don’t want to be on the wrong side of this principal for both moral and legal reasons.

Check the work email. Then act appropriately.

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