As case law develops, employers seeking to monitor employees’ electronic communications – whether on company time or on company equipment – should proceed with caution, experts say.

Employers should consider state laws, which in most cases apply to privacy issues, and federal laws including: the Stored Communications Act, which prohibits clandestine access to electronically stored information; the Electronic Communications Privacy Act, which bans the interception and reception of certain electronic communications;  the Wiretap Act, which governs privacy of oral and wire communications; and the National Labor Relations Act, which covers collective bargaining and other employer and employee rights.

Generally if employers are monitoring employee activity over a corporate server and employees are using corporate equipment, the information is fair game, as long as the employer has given notice that there may be monitoring. However, going into personal social network or e-mail accounts accessed on a company computer is where the courts have begun to draw the line, according to attorney experts.

Regulating corporate information shared by employees on public forums and websites is another gray area. Assuming the information in question is not defamatory, it is unclear whether employers have that right. An employer could even violate an employee’s free speech rights with adverse action in response to a blog post or other public commentary.

In the absence of developed precedents on the topic, employers should take precautions. Employers monitoring employees’ electronic communications should establish a policy that explicitly states employees have no privacy rights in communications on company systems or on equipment purchased and reimbursed by the company. They should reinforce these policies periodically, but always respect the privacy of personal, password-protected electronic communications, avoiding rash reactions to perceived employee criticisms in electronic communications.