By: Meghan Huggan

Does your employer know about those personal emails you have been sending during work hours? They probably do, and may have even read them. Privacy is not a fundamental right for US employees, but a recent decision by the Grand Chamber of the European Court of Human Rights has begun to change the game when it comes to employees’ privacy rights at work. The decision says employers cannot monitor EU employees’ emails at work unless employers disclose their intentions to do so in advance. This new court order will force employers of EU employees to stop stripping their employees of their privacy rights as they enter their workplace doors.

The decision was based on Bogdan Mihai Barbulescu’s case regarding a Yahoo Messenger account he created to communicate with clients at work. In 2007 Mr. Barbulescu’s employer confronted him with transcripts showing he had used the messenger account to chat with his fiancée and brother about personal matters, and fired Mr. Barbulescu two weeks later. In January of 2016 a lower Court ruled, 6 to 1, that the employer was justified in viewing Mr. Barbulescu’s chat history, saying “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.” Mr. Barbulescu then escalated his case to the European Court of Human Rights, which ruled Mr. Barbulescu’s rights had in fact been violated because he had “not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have actual contents of his messages.”

Unlike European courts, where privacy is held to be a fundamental human right for all people, US courts often find in favor of employers that inconspicuously surveil their employee’s communications at work. The reasoning behind this is that the employee is using the equipment, software and internet connection provided and owned by the employer; therefore, the employer should be entitled to access any records found within their property. Nevertheless, this new European court ruling will limit US multinational companies that also employ people in any of the 47 members of the Council of Europe from surveilling their employee’s communications. Some employers do address their surveillance policies within their employment contracts, but this new ruling will force employers to be more upfront about these intentions.

A growing number of communication avenues are being created for people to use at anytime, anywhere, but the law has yet to catch up to these technological advancements. It is widely accepted that employees will use different forms of communication during work for personal use, and some experienced employers have begun to implement policy changes to account for this, although the law does not yet require them to do so. This new European Court ruling will hopefully push more employers to acknowledge and respect their employees’ privacy rights in the workplace worldwide.

Bio: Meghan Huggan is a 2L at Suffolk University Law School. She received a B.S. in Legal Studies and Psychology from Roger Williams University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

 

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