Employment Law and Email Privacy

By Tina Hwang | Employment Law

In New Zealand electronic communications are not considered property and therefore cannot be stolen. But can an employer access your emails and use them as reasons to dismiss an employee?

Recently aspects of the NZ privacy law and how it relates to emails have been in the forefront of political events. The election campaign has been turned upside down by a new book by investigative journalist Nicky Hager. Dirty Politics is based mainly on a leak of 2 gigabytes of emails and Facebook messages from “Whale Oil”, the vicious right-wing scandal-mongering blog edited by Cameron Slater. Whaleoil blogger Cameron Slater says he will be laying a complaint with police over the hacking of thousands of his emails, which have been published in Nicky Hager’s new book Dirty Politics. The book has created huge controversy, making a number of claims against National Party members including Judith Collins. Mr Slater says he has already laid a complaint with the Privacy Commissioner and can’t do anything more once he has spoken to police except to keep looking for evidence to back his claims up.

Can emails be used as evidence in Court? Absolutely, in March of this year Conservative party leader Colin Craig and Green Party leader Russell Norman were due to expose Craigs email inbox to the viewing of the court as evidence. Read the full herald article here.

Colin Craig’s legal team wanted a retraction from Dr Norman for his comment that Mr Craig “thinks a woman’s place is in the kitchen” but they delayed action on the comment that “a gay man’s place is in the closet”.Dr Norman defended his comments, made at a speech at the Big Gay Out. The Greens co-leader said it appeared Mr Craig had something to hide.”One can only speculate what might be in Mr Craig’s emails that he doesn’t want them to come out in court about his views about gay New Zealanders.”Asked to respond to Dr Norman’s comments, Mr Craig said the decision to split the case into two parts was “purely strategic”. “The cynic might say I’m just wanting to cherry-pick. There is an element of that in the strategy of it all. But his comments were absolutely wrong and they’re no less wrong because we’re putting half of it on hold.” Mr Craig said including Dr Norman’s comment about homosexuality in the claim would be costly and time-consuming because Greens would seek the thousands of emails and documents Mr Craig held in relation to the gay marriage debate last year. Mr Craig was a vocal opponent of the change to marriage laws. He had made far fewer public and private comments about the place of women and focusing only on these would allow for a “quicker, cleaner” court case.

Media and defamation expert Ursula Cheer, from the University of Canterbury, said splitting the claim would restrict the Green co-leader’s defence.”It might affect how much evidence that Russell Norman can [get] hold of to argue truths.”Dr Norman said it was a costly distraction in an election year. But he felt it was important to defend free speech.Mr Craig hoped to fast-track the process and get a retraction before the election, but legal experts said that was unlikely.

Queen City Law are experts in employment law and have represented both employees and employers. If you have a problem or dispute which involves workplace rights, contact the Disputes team at Queen City Law and check out some of our articles in the Disputes Library. QCL advise on all the legal issues encountered in day to day business activities and work in partnership with our clients as specialist business advisors. Click here to contact us.

Q: Privacy at Work: Are my Rights in the work place the same as personal life?

A person has far fewer privacy rights at work than they do in their personal life, but a person is sometimes still entitled to some privacy at their job. Here are answers to some of the most commonly asked questions about emails and the privacy issues of the work place.

Q: Can my employer search my desk, office and/or locker? What about my computer?

Employers can usually search an employee’s workspace, including their desk, office or lockers. The workspace technically belongs to the employer, and courts have found that employees do not have an expectation of privacy in these areas. This is also the case for computers. Since the computers and networking equipment typically belong to the employer, the employer is generally entitled to monitor the use of the computer. This includes searching for files saved to the computer itself, as well as monitoring an employee’s actions while using the computer (eg, while surfing the internet).

Q: Can I set up cameras to film my employees at work? Or monitor their email and internet use?

A:Its best to ask yourself is it really necessary? Will any gain you make be outweighed by a drop in morale or productivity because your staff feel less trusted or less secure? Is there a different way in which you can deal with the problem?

Once you are clear that you do need to conduct these checks, the following approach is often useful:

develop a draft policy setting out why you are doing this, and when you will monitor (eg on a regular basis, only on suspicion that something untoward has happened etc);

circulate the draft policy to your employees;

discuss it with them, or with their union;

again, let everyone know why it’s necessary;

listen to any feedback;

make any necessary adjustments to the policy and then issue it.

If you can get staff buy-in to your policies, there will be less of a drop in morale and productivity.

Q: Can my employer read my emails or listen to my phone calls? What about text messages on a company phone?

Employees generally don’t have any privacy in their emails at work. Again, since the email system belongs to the employer, they are allowed to monitor their employees’ communications. Employers can also generally monitor employee’s phone calls for quality control purposes. They are supposed to cease monitoring once they are aware that the call is personal, though. If there is a policy in place against personal calls, however, the employer can listen to enough of the call to determine that it is personal, and the employee may still face disciplinary action for the personal call even if the employer didn’t listen to the entire call.Some states in the USA, such as California, require that all parties to a monitored phone conversation receive notice about the monitoring. In NZ your employer will usually inform you if they plan to monitor your phone calls.Here are some of the questions that employers commonly ask

Q: What information can I ask a job applicant to give in an interview?

A: In general terms, you can ask an applicant to give you personal information as long as it is relevant to the job the person would be doing within your organisation, and as long as it is necessary to get that information. Don’t ask for information that you don’t need to know, or which shouldn’t affect your decision whether or not to hire the person.

Q: Is there any information a job applicant doesn’t have to give me?

A: Yes. For example, since the Criminal Records (Clean Slate) Act was passed in 2004, an applicant is entitled to conceal certain types of criminal offending. For instance, he or she may have a conviction for a minor offence. If that conviction is more than 7 years old, and the person has not offended again, they do not have to tell you that they were convicted (as long as all the other conditions in the Act apply). Information about any police diversion that the person might have are also outside an employers right. The applicant doesn’t have to give the information to you, and the Police won’t give it to you either. Usually diversion information isn’t relevant to a person’s ability to do a good job as they are often for minor offences when people were much younger.

Q: Can I contact people who the applicant has not named as referees?

A: Not without the applicant’s agreement. But this doesn’t cause as many problems as you might think. For example, if an applicant hasn’t given a current employer as a referee, it’s worth asking why not. People do not always want a current employer to know that they are looking for another job. Their job could be jeopardised by an inquiry. If you need to speak to the current employer before appointing a person, then tell the applicant you’ll have to do that, and get their agreement.

This information was accurate as at August 2014

We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and it should not be relied upon in individual cases. Professional advice should always be sought before any decision or action is taken.