You have just terminated an employee and must now decide what to do with their email accounts, laptop data, DMs, personal folders on their laptop and all the other digital footprints employees leave every day.
This post will focus on employee emails. Whether you fire with or without cause, can you read your employee’s emails when they leave?
Understanding employer rights to company data
Ontario employers work within a very employee-friendly jurisdiction, so let’s first walk through what basic rights employers do have when it comes to company data. In Ontario, employers have broad rights to company data, subject to certain restrictions and obligations under privacy laws. Here are some of the key rights:
- Ownership: Employers typically own all company data, including data generated by employees in the course of their employment. This includes emails, documents, databases, customer lists, and intellectual property.
- Access and Control: Employers have the right to access, control, and use company data as they see fit, subject to privacy laws and any contractual obligations. This may include monitoring employee use of company systems and data, though employers must respect employee privacy rights.
- Protection: Employers have the right to protect company data through security measures, confidentiality agreements, and policies on data use and handling.
- Disclosure: Employers can disclose company data as necessary for business operations, legal compliance, or other legitimate purposes.
- Transfer: Employers can transfer company data as part of a business sale, merger, or other transaction.
- Deletion: Employers can delete company data, subject to any legal requirements for data retention.
However, Ontario employers also have certain obligations under privacy laws like the Personal Information Protection and Electronic Documents Act (PIPEDA). For example, they must protect personal information in their possession, use it only for legitimate and reasonable purposes, and provide individuals with access to their personal information upon request. While Ontario does not have a privacy act specific to most private-sector employees, courts do remain mindful of general privacy principles. Employers must also comply with any contractual obligations around data, such as confidentiality agreements with employees or data processing agreements with third parties.
Can I read my terminated employee’s email?
Yes, you can read the email on your employee’s work account upon termination. Work email accounts are company property.
For personal accounts on the company laptop, generally, if an employee is using a company-provided laptop, the employer may have the right to monitor the use of that device, including access to personal emails if they are accessed through that company device.
However, going through personal emails is definitely full of legal landmines. The right to do so depends on the specific policies set by the employer and whether the employee has been notified of these policies. Employers will have a much easier time relying on company policies that have been expressly pointed out to employees so that employees have a clear understanding of their employer’s policies regarding device and internet use. While a company can diminish an employee’s right to privacy, it cannot fully extinguish such rights.
Signing into a personal email even on the company laptop is likely a privacy breach, particularly if there are no reasonable grounds to do so. Needless to say, hacking into any personal accounts is a terrible idea. Most exits are relatively benign and simply two parties going in their own direction. Practically, there is rarely a need to go through personal email, even if you had the full legal right to do so.
Email account best practices on termination
Personal email accounts, however, are not fully off the radar. For all terminations, it is a good idea to take a quick look at the employee’s company email account and look for any big red flags involving personal email account activity. In 98% of the time, there is no need for a forensic investigation, but it’s typically a good idea to run a search of work emails being forwarded to the employee’s personal account. This will provide insight into any potential data theft or customer solicitation.
For more suspicious employees, work with your IT folks to detect any significant dumps into the trash, any significant trashing of the trash, any forward rules, and to run more comprehensive searches of key issues of concern.
For hostile exits, be sure to get a crystalized copy of the full email account and preserve that evidence. Email is a very significant part of most employment termination litigation cases and will always be an important body of evidence to preserve and protect.
By Lisa Stam
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