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9:59am EDT July 22, 2002

You installed an e-mail system to increase communication within the company, but some employees have found other uses for it.

Two of your managers are exchanging sexually explicit jokes through the system, increasing the possibility of a sexual harassment claim. Someone in accounting is telling a friend more than he or she should about the company's financial situation, and worse, you just received notification that someone is sending hate mail over the Internet with your company name stamped on it.

"Every employer must have the right to review employee e-mail because of the exposure they face," says Michael Overly, a specialist in Internet and computer law with the Los Angeles office of Foley & Lardner.

The problem is, just saying you may monitor employee e-mail may not be enough. If you have a policy that states you will monitor e-mail, but everyone is issued a password to access their account, no one mentions the mail is being monitored and no one is checking it, then employees may have an expectation of privacy, regardless of what your policy says.

Another tactic employees have used to win cases against companies is to file under the federal Electronic Communications Privacy Act.

"That act says it is illegal to intercept electronic information or retrieve it from a hard disk," says Overly. "The only exception to the liability is if the parties consented."

Having a general policy stating that communications may be monitored is not enough. Any policy should be clearly worded, state that disciplinary action may be taken for violations and be signed by each employee.

"Many people look at this as a big company problem," says Overly. "But even with start-ups, the company essentially should have what they expect of the employees written down in ink. There are a number of cases where an employee abused the system, but the company didn't have a policy in effect as to what the employee obligations and requirements are, so the courts say 'How was the employee supposed to know what was and was not appropriate?'

"A well-worded policy gives an objective standard to measure employee conduct by, so it is important to have one in place regardless of your company size."



Policy guidelines

The key to having full access to employee e-mail without risking a lawsuit is a solid policy. Overly recommends:

  • The policy clearly states the system belongs to the employer and is for business use only.

  • Anything created or stored in the system may be subject to monitoring.

  • A list of clear guidelines on what is and isn't appropriate. There should be mention of sexually oriented material and discriminatory statements in the list of inappropriate uses.

  • Employees understand that if they do not comply with the policy, they may be fired.

  • Employees be required to sign the policy. Without a signature, an employee can sue for invasion of privacy under federal law.

  • The signed document be placed in the employee's file.

If you monitor e-mail, you can help protect yourself by telling employees mail will be monitored from time to time. The more you tell them, the less employees can argue they had an expectation of privacy.


Employer voyeur

There are three main ways to monitor employee e-mail:

  • Random sampling. A random number of e-mails are pulled of the system every month to make sure the content is appropriate.

  • Responsive sampling. This is sampling the e-mails of an employee after complaints are received. It's better than nothing, but you may already be liable for conduct that has occurred. If the person is sending sexually harassing messages and you don't catch it quickly, you may be liable for allowing a hostile work environment.

  • Content monitoring software. The program sits on the computer and looks at the content of every single e-mail. It looks for sexually explicit words or heavy use of profanity. It also looks for picture attachments. Suspect messages are not sent until reviewed by the employer. This allows the company to protect itself from harmful e-mails while still respecting the privacy of employees to some degree.

"The advantage of using this software is that in many cases of sexual harassment, the person is very reticent to step forward," says Overly. "It's hard for a person in a small business to come forward. This system prevents those messages from ever being delivered."


E-mail facts

  • Only about one-third of companies that have e-mail have a policy stating acceptable use of the system.

  • Between 40 and 50 percent of companies that have e-mail engage in some form of monitoring.

  • E-mails are like any other company document and can be used against you in a lawsuit.