In the "all-digital" age, email has become an indispensable work tool. Many employers set up a business e-mail address for each employee. Accessible at any time from a cell phone, the employee can use it anywhere.
Sending private e-mails, risk of leakage of company data: the private and untimely use of professional e-mails can be costly for the employer. It leads to a loss of employee productivity. Downloading files can slow down the internet connection of the whole company.
In some situations, the employer may suspect email misuse, such as when the employee spends all his/her time writing emails or the employer notices downloads of attachments of questionable origin. The employer is tempted to access and monitor the employee's business e-mail address and take action against the employee if abuse is found.
Without addressing this issue through a policy, the employer may be limited in the ways he/she can investigate and sanction his/her employee.
E-mail surveillance can injure the employee's personality rights. The employee can quickly feel that he is being spied on or that the employer is monitoring his behavior at all times, which can be detrimental to his psychological health. Monitoring becomes more complicated if the employer allows private use of the work e-mail address.
However, the employer has a real overriding interest in ensuring that the employee does not overuse his or her professional e-mail address. Under certain strict conditions, the employer may monitor the employee's use of the e-mail. He must respect the procedure established by the Federal Data Protection Commissioner. Otherwise, such monitoring will be considered unlawful.
If the employer wishes to regulate or monitor the use of e-mail, it must issue a guideline beforehand and follow a specific monitoring procedure established by the Federal Data Protection Commissioner. Otherwise, if the employer accesses the employee's business address without his/her permission, he/she risks incurring liability, even if he/she suspects abuse.
Out of the office
With the smartphone, employees can access work emails anytime, anywhere. What about the zealous executive who checks and responds to emails late at night or on the weekend? Can the employer send emails at all hours of the night or during the employee's holiday? In some situations, checking and responding to emails will be considered work time that must be paid.
Psychological and sexual harassment
The relative anonymity of internet communications disinhibits some employees. They can vent their frustrations by sending hateful or sexual e-mails, without having to confront the co-worker in real life.
Cyberstalking is real and can be damaging. When cyberstalking comes from one of his/her employees, customers or suppliers, the employer has the same duties as in the case of sexual harassment or mobbing in the workplace. The employer must take the appropriate measures to put an end to it. He/she should, in advance, issue a guideline aimed at fighting against harassment, whatever it may be.