Email In The Workplace: Avoiding Legal Landmines

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It happens every day in the office. One employee sends an email message containing private details of his personal life. Another circulates sexually suggestive jokes via email to a group of friends. It all seems so private, rapidly transmitted from one computer screen to another. And just a click of the delete button and the message is gone forever. Right?

Wrong.

Although there is a perception that an email is like a private, person-to-person communication, inappropriate employee use of the company email system can create a host of problems for an employer. Email transmissions are considered “documents,” and can be used against an employer in a lawsuit in the same way as any written letter or memorandum. In recent court cases, employee email messages have been presented as evidence in claims of discrimination, sexual harassment and other illegal activities. Moreover, deleted messages do not just “go away,” but remain in the company’s electronic archives. Deleted messages can be recalled, and an improper message can come back to haunt an employer months or years after the message was first transmitted.

In light of these issues, employers are increasingly concerned about what steps to take to prevent improper employee use of the company email system. Employer concerns focus on the areas of:

• Whether or not to monitor email usage; and
• How to adopt policies and procedures to enforce employer email usage standards

There is no single answer to the first question, as the need for and advisability of employer monitoring will vary with the individual characteristics of the organization. However, whether or not an employer chooses to monitor email usage, it is critical to develop and implement a well-designed email usage policy.

To Monitor or Not to Monitor?

A growing number of companies are monitoring their employee’s email for a variety of reasons. Not only are employers concerned with preventing potential legal exposure, but they also want to ensure that employees are working productively on company time, and that proprietary information is not being sent out of the company without authorization. Faced with discipline or termination for sending improper emails, employees may contend that the employer is violating their privacy rights.

Generally, an employee sending personal emails in the workplace does not have the right to privacy. The electronic mail systems at work are the employer’s property, as are the computers used to transmit email messages. As an employer, a company has the right to expect that emails transmitted by employees will be for proper business purposes, and the right to monitor employee emails for potential violations of this expectation. In addition, because, as discussed above, email messages can be used against a company as evidence in a court of law, companies have the right to take steps to minimize the risk that an employee may create documentation that is discriminatory, harassing or otherwise illegal or improper.

There is a limited exception to the employer’s general right to monitor employee emails when an employee is determined to have a reasonable expectation of privacy. Not all states recognize this concept, and those that do vary in the standards the employee must meet to demonstrate that such an expectation exists. However, in determining the existence of a reasonable expectation of privacy, a court will generally examine the specifics of the individual organization, including any express or implied promises made by the employer to its employees. For example, if an employer assures its employees in writing that it will not monitor employee emails, or if an employer allows its employees the unlimited personal use of its email system, an employee will have a better argument that the employer has violated his or her right to privacy if it monitors personal emails.

On the other hand, there may be some compelling reasons for employers not to monitor employee emails, or at least to use some discretion in the scope of monitoring undertaken. Excessive surveillance can be damaging to employee morale. In addition, monitoring without notifying employees that they are being monitored may lead to a lack of trust in the integrity of the organization. If the organization does decide to monitor emails, it is best to limit the scope of the monitoring to concentrate on proper business concerns, and to notify employees of this practice on a regular basis.

Creating an Effective Email Policy.

While the decision whether or not to monitor employee email transmissions is up to the individual employer, all companies should develop and communicate a sound email policy to communicate proper usage of the company email system to employees. The employer should distribute its email policy regularly to all employees, and require them to sign an acknowledgement that they have received, read, understood and agree to abide by the rules. A good email policy should contain the following elements:

1. A statement that the employer’s email system is employer property, to be used for the purposes of furthering employer business. The policy should state whether personal emails are permitted, and define any limitations on personal use of the system.

2. An explanation of the rules governing the use of the email system. For example, employees should be informed that email use should comply with all applicable laws and regulations, and that the system should not be used to:

• Transmit or receive confidential or sensitive information;
• Transmit or receive discriminatory, harassing, sexually oriented, offensive or other illegal or improper messages; or
• Download unauthorized software onto the employer system

3. If the employer intends to monitor employee email, the policy should state this, as well as the business reasons for doing so and the circumstances under which monitoring will take place. The policy should include a statement that the employee has no expectation to privacy regarding any emails sent, received or stored at the workplace.

Most employees that misuse their company’s email system do not do so intentionally. Usually, they do not understand that email transmissions, by their nature, are not private documents, and that inappropriate use of the system opens both the company and the individual to potential legal exposure and personal embarrassment. A well-drafted, well-communicated company email policy will instill in employees the instinct to think twice before clicking the “send” button.

This article was provided by HR.com.
HR.com(TM) is a website committed to making the lives of HR professionals and business managers easier. HR.com offers eight communities to address the specialties within human resources, including a section on Conflict and Dispute Resolution in our Labor Relations community. Within each community, users can access articles and research, find vendors/consultants, buy products or services and join discussion groups to learn from their peers.

                       

Shawn Smith

Shawn Smith, J.D. is a speaker, author, consultant and attorney, and the founder and president of Next Level Consulting, LLC, a firm specializing in the design and development of collaborative solutions enabling growing companies to improve their business effectiveness. Shawn has 20 years' experience as a senior corporate executive, attorney… MORE >