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26 April 2011
In a 91-page opinion the National Labour Court recently laid down a clear set of rules regarding an employer's right to monitor its employees' email messages and other employee uses of workplace IT systems.(1) The rules impose severe restrictions on employers' rights, subsequently calling for employers to consider modification and reform of their employee privacy policies.
The case before the court raised the question of whether an employer may access an employee's email messages and submit them as evidence in the course of court proceedings brought by the employee against the employer. Typically, the employer will wish to present evidence which has been obtained from the employee's email account in an effort to dismiss the employee's claim for unlawful termination. However, the 'fruit of the poisonous tree' doctrine (which refers to the method of obtaining evidence under the Privacy Protection Law) prohibits the submission of any evidence which has been obtained through the invasion of privacy.
Chief Judge Nili Arad delivered the National Labour Court's opinion on two appeals from district labour courts that had previously reached inconsistent decisions related to employers' rights in the above-mentioned respect.
Email account monitoring
In its decision the court clearly laid out the following principles in regard to email account monitoring:
Based on the above principles, and in regard to the specific cases at hand, the court granted the employees' motions to suppress the evidence due to the employers having obtained the evidence through unlawful means (ie, through invasion of the employees' privacy).
Additional resources monitoring
In its decision the court addressed additional resources used by employees at work, such as the Internet, fax machines and other computer software, and laid out general guidelines for their monitoring by employers. Thus, for example, it was stated that employers are required to define clearly in their policies which uses are acceptable, which uses are not acceptable and in which circumstances the resources are monitored. In addition, the court laid out further guidelines for the use of various monitoring methods, such as cameras.
In light of the above decision, employers should make all necessary adjustments to comply with the court's requirements. Specific attention should be given to existing corporate policies, employment contracts and the obtaining of adequate consent in order to harmonise corporate information security systems within the new pro-privacy workplace environment which the courts have now created.
For further information on this topic please contact Haim Ravia or Dan Or-Hof at Pearl Cohen Zedek Latzer by telephone (+972 9 972 8000), fax (+972 9 972 8001) or email (firstname.lastname@example.org or email@example.com).
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