The Private Workplace and the Proposed "Notice of Electronic Monitoring Act": Is "Notice" Enough?

I. INTRODUCTION On July 20, 2000, an interesting mix of federal legislators proposed legislation that would affect monitoring of employee communications and computer usage in the workplace. Representatives Charles Canady (R.-Fla.) and Bob Barr (R.-Ga.) introduced the Notice of Electronic Monitoring Act (NEMA) in the House of Representatives, and Senator Charles E. Schumer (D.-N.Y.) introduced it in the Senate. (1) Had it passed, NEMA would have required employers to notify their employees if they wished to conduct surveillance of their employees' electronic mail ("e-mail") or other electronic communications. (2) The bill would have required the prior notice to include the form of communication that would have been monitored, the means by which monitoring would have taken place, the type of information that would have been obtained, the frequency of monitoring, and the intended use of the obtained information. (3) Unfortunately, employer groups succeeded in getting the Judiciary Committee to pull the bill from further consideration. (4) They cited a potential increase in litigation and more work for human resources professionals in complying with NEMA. (5) The bill also languished in the Senate. (6) It is possible, however, that the bill will be reintroduced in both houses of Congress in the near future. (7) Hopefully the bill will be reintroduced, because the monitoring of workplace e-mail is an issue that needs to be addressed. Union and employee advocacy groups have complained about electronic monitoring, contending that such practices are an invasion of privacy, cause work-related stress and low morale, and can be used in an unfair manner. (8) And while public employees may be protected to some degree under the Constitution from such invasions of privacy, private employees can not rely on such protection. (9) Private employees must look elsewhere to find protection, such as state law or even the federal wiretapping statute. The effect of these alternatives on electronic monitoring is ambiguous. This ambiguity needs to be addressed now through a clear standard, so employers are able to install policies without fear of litigation. This will also allow employees to know their rights and what is expected of them at the workplace. NEMA, through its notice requirement, sets a clear standard and marks a fine compromise between employer and employee interests. This Note argues that NEMA should be adopted, since it would improve the current state of affairs relating to electronic surveillance in the workplace. The Note asserts that NEMA will positively benefit both employers and employees by establishing a "bright line" that takes into consideration both parties' interests. Part II addresses the current state of the law regarding electronic monitoring, with a focus on e-mail. Part III discusses NEMA and addresses the arguments for and against it. Finally, Part IV argues that the current version of NEMA is satisfactory and should be enacted into law. II. DEVELOPMENT OF THE LAW RELATING TO ELECTRONIC MONITORING The advent of the Internet has revolutionized the workplace. In particular, the ability to send e-mail has benefited companies and employees alike. In a poll of more than 1,000 employees conducted by Vault.com, "80 percent said e-mail has replaced `snail mail' [regular mail] for the majority of their business correspondence, 72.5 percent said it has replaced faxing, and 45 percent said it has replaced phone calls." (10) Vault.com estimates that forty million users will send sixty billion e-mail messages per year. (11) E-mail is generally speedy and easy to use for those who have access to it. These positive attributes are not without negative side effects, however. Since e-mail is readily available in most workplaces, some employees may use it for matters unrelated to their jobs, such as for sending personal messages. Employers may have several concerns about personal use of their computer resources, including potential liability to other employees or third parties, disclosure of sensitive information, and waste of time and resources. …