State law prohibits the unauthorized interception of wire, oral, and electronic communications, with certain specific exceptions. The law further prohibits disclosing or using the communication that was obtained illegally.
Exceptions. Although there are several exceptions to this law, the exceptions most relevant to employers are the consent exception and the “ordinary course of business” exception. Under the consent exception, it is lawful to intercept a communication in which the person is a party to the communication, or one of the parties to the communication has given prior consent to the interception.
To fall within the ordinary course of business exception, the employer must be a provider of a wire or electronic communications service. This means, for example, that the employer provides its own e-mail system for employees to use for work purposes. The employer may monitor employee use of such a system provided that the monitoring occurs in the normal course of employment and the employer has a legitimate business reason for monitoring (DE Code Tit. 11 Sec. 2401