An employee will likely be deemed to have given consent if, having knowledge of the employer s policy, he or she continues to use the e-mail system. To this end, a written policy is preferred because all parties will have expressly consented to its terms. For example, in the context of telephone calls, the courts agree that an employer is not privileged to continue listening to conversations of a purely personal nature. Further, a policy that merely suggests that monitoring may be done may not be sufficient to create implied consent. State law claims.
Employees have two avenues for bringing state law claims.
First, they may raise a claim based on any existing state legislation that might offer them protection from employer e-mail monitoring. Second, they may allege a violation of their privacy rights under state common law principles. Since 1990, employees have brought a handful of suits under state law, several of which have raised both common law and statutory theories of recovery. However, in no case has an employer been found to have violated an employee s right of privacy by reading the employee s e-mail messages. Some states, such as Maryland and Florida, require the consent of both parties to a communication before an employer may monitor e-mails.