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Is it realistic to stop employees from surfing for fun at work? No, says court. Photo by Getty Images
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Tomer Appelbaum
Nili Arad Photo by Tomer Appelbaum

Employers may not pry into their employees' personal e-mail, the National Labor Court ruled in a landmark decision this week.

The decision set guidelines governing employees' use of company computers, and e-mailing in the workplace. It also ruled on the employer's access to the workers' e-mails.

On the one hand, employees have a right to privacy - primarily stemming from the difference in power between the employer and worker, the 3-judge panel ruled.

The court recognized that employees spend much of their day at work. It also noted the blurring of boundaries between the employee's life at work and outside - and therefore, the employment relationship must be based on mutual trust.

"This requires the protection of the worker's privacy in the workplace," the court said.

The employer has the power to supervise employees' conduct on the job. This may include how the worker uses information and communications technology. But supervision of use of the computer must be exercised reasonably and with proportionality and good faith, the court said.

Judge Nili Arad, seconded by Judge Steve Adler and Ronit Rosenfeld, laid down some principles.

The company must set rules regarding the extent, if any, to which employees may surf Internet for their personal use.

The use of information technology and electronic communications facilities at work are designed for work purposes, not to serve the employees' personal needs. But, Arad noted, a blanket ban on using Internet at work for personal reasons may not be practical or realistic, especially given the importance that Internet plays in daily life, and the number of hours that many employees spend at work.

But while the company may allocate "down-time" for workers to surf, its ownership of the computers does not give the employer license to infringe on the employee's privacy.

The employer's right to access to the workers' personal e-mail correspondence is only permissible under limited and extenuating circumstances, such as substantial concern that the employee has been involved in criminal activity or other illegal acts or other substantial harm to the rights of the employer.

The court therefore did not rule out an employer's accessing an employee's personal e-mail correspondence, but limited it to exceptional circumstances.

The guiding principle must again be the employer's obligation to apply a clear policy in the workplace regarding all aspects of computer use, Arad stated.

If a company's policy is unclear, workers would have a reasonable expectation of privacy, she said.

Under those circumstances, as long as the worker's use of the computer is made in good faith and as long as the personal use does not harm his performance on the job, that expectation of privacy exists and the employer cannot violate it.

The court panel also made a distinction between the employer's e-mail system and the employee's own personal e-mail account. The courts also noted that some employer e-mail accounts were only for use for business-related correspondence while other employer e-mail systems may involve a mix of business and personal e-mails. The judges said employers are within their rights to limit the company's e-mail system to business-related e-mail correspondence alone.

Alternatively, an employer can provide two separate e-mail facilities, one for business use and the other for personal use. Under both circumstances, the employees are using the computers owned by the company and supported by the company's central computer server, Arad stated.

When it comes to e-mail accounts that are reserved for business use, the employer therefore has the full right to access and inspect the contents of correspondence - on the condition that the employee is made aware of company policy.

Even then, however, if the employer finds personal correspondence on an e-mail system reserved for business use, the employer doesn't have the unrestricted right to access the personal correspondence. The company still must show that extenuating circumstances such as activity harmful to the company or a suspicion of criminal activity as justification for the intrusion.