To ensure appropriate use of an e-mail system, an employer must have, and sometimes must exercise, the right to monitor what employees are sending and receiving via e-mail. Some employers prefer to monitor regularly, as a preventive measure, while others prefer to do it only in response to specific complaints. Either approach raises the question of what privacy rights, if any, an employee has in his or her e-mail.

Both federal and state laws address issues of e-mail privacy in the workplace, and those laws are generally similar. The 1986 Electronic Communications Privacy Act ("ECPA") and the New Jersey Wiretapping and Electronic Surveillance Control Act both prohibit the unauthorized intentional or willful interception, accessing, disclosure, or use of electronic communications, including e-mail. Violations of either law may result in civil and criminal penalties.

However, three exceptions to those laws can permit employer monitoring of employee e-mail communications: The first exception generally allows a private employer to intercept or access e-mail communications in the work place, if the employer has provided the e-mail system. Debate still exists as to whether this exception is available to an employer who uses a public Internet service provider, such as America Online or AT&T WorldNet.

The second exception permits interception of employees' electronic communications if done in the ordinary course of the employer's business, provided that certain conditions exist. Some courts have allowed employers to monitor "business-related" communications but not "personal" communications, while others have allowed employers to monitor when they have a legitimate business reason.

The third exception permits monitoring or access of communications with the prior consent of the sender or recipient. Publication of an appropriate e-mail policy can help to establish the employee's consent.

These laws do not prohibit the unauthorized accessing of electronic communications that are stored in the memory of a computer provided by the employer. However, employees have tried to assert privacy rights independent of the statutes, in lawsuits over monitoring of e-mail.

Whether under the statutes or under general law, employee lawsuits against employers who have read their e-mail generally turn on whether the employee had a reasonable expectation of privacy and whether the employer had a legitimate reason to justify the monitoring.

To date, employers have won most of these cases, particularly when they have reasonably limited their investigation and have distributed a reasonable e-mail policy that dispels employee expectations of e-mail privacy.