More and more employers have policies that address the use of e-mail (both personal and work accounts) and the internet, particularly social networking sites. And, it is now common for employers to monitor employee's electronic activity on computers used for work.

Adopt a policy that only allows monitoring of work-related e-mail accounts and prohibits access to an employee’s private e-mail accounts without his or her consent. If employees use personal e-mail accounts for work activities, obtain written authorization and consent from them to monitor their communications. As always, be clear that any violations are strictly prohibited.

In developing and implementing these policies and in keeping an eye on employees' compliance, employers need not to fall into the pit of trouble that can result when they, or their employees, access the personal e-mails of fellow workers.

Earlier this year, the U.S. Court of Appeals for the Fourth Circuit issued an opinion that addresses this very situation and is serving as a wake-up call to employers.  See Van Alstyne v. Electronic Scriptorium, Ltd., et al, 560 F.3d 199 (4th Cir. 2009).  In Van Alstyne, both the Company and its President were found to be in violation of the Stored Communications Act, 18 U.S.C.A. § 2701, where the President had accessed, without authorization, another employee's private AOL email account, which the employee occasionally used to conduct Company business.

The Fourth Circuit held that an employee can recover statutory damages of $1,000 per violation when the employee has suffered any actual harm.  Even when the employee has suffered no actual harm, the employee can recover punitive damages, as well as reasonable attorneys' fees and costs.  And, if the person improperly accesses the emails as part of doing his or her job, or if management condones the access, then the employer may also be held liable for these damages, fees and costs.