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The e-police Featured

9:34am EDT July 22, 2002

Computer technology is revolutionizing workplace communications. Employees can access data or images and quickly transmit information using e-mail, the Internet and voice mail.

The same technology also permits employers to easily monitor communications. Monitoring may protect trade secrets, ensure quality control, promote productivity or reduce exposure to others for employee misconduct.

Business owners must ensure that electronic communications are used for business purposes and not as time consuming, addictive diversions or as a means to transmit sexist, racist or other discriminatory information or images.

Companies may be held responsible in court for harassing or discriminatory electronic communications sent by their managers and employees. These communications are often colloquial, poorly structured and written without forethought. Employees view them as a medium for quick messages that are easily deleted. In fact, due to back-up systems and wide dissemination, this is not true.

A recent American Management Association study revealed that 74 percent of employers monitor their employees' electronic communications and 54 percent monitor employees' Internet connections. The larger the enterprise, the more likely it is to monitor its employees. Companies in the financial and insurance industries have the highest levels of surveillance.

Discipline for misuse of electronic communications is increasing. Xerox Corp. discharged 40 employees for misusing company Internet resources when they spent "the majority of their days" visiting nonwork-related or sexually-oriented sites. In July, Dow Chemical Co. discharged 50 workers and suspended 200 for sending and storing pornographic or violent e-mails.

But monitoring is not always easy. Clumsy or improper monitoring can have dire consequences --loss of employee morale, union organizing and even administrative complaints and lawsuits against the company.

Employees have a variety of legal avenues to challenge improper monitoring, including invasion of privacy, libel and slander, wrongful discharge claims and unfair labor practice charges before the National Labor Relations Board.

Employees' e-mail messages can be a form of group activity protected by the National Labor Relations Act. In a case involving a Cleveland company, Time Keeping Systems Inc., an employee was discharged after he sent an e-mail critical of changes in the vacation policy to the company's chief operational officer and all other employees.

The National Labor Relations Board found that the discharge violated the Labor Act. Employees cannot, however, use electronic communications to disrupt a company's businesses and still be protected by labor law. Employees who disrupted companies' computers and faxes were found not to have engaged in protected activity.

Business owners must develop electronic communications policies to regulate employees' use of communication devices and protect themselves from expensive and disruptive litigation. They should consider the following suggestions:

  • Distribute written policies telling employees that they have no legitimate expectation of privacy in e-mail and other electronic communications.

  • Give notice to all employees that electronic communications, such as e-mail or voice mail, are the property of the company and should be used for business purposes only.

  • Notify employees that by using the company's equipment, they are consenting to have such use monitored by authorized personnel at the company's discretion.

  • Advise employees that any misuse of the company's confidential information or trade secrets will lead to discipline and possible criminal prosecution.

  • Forbid the use of unprofessional, threatening, harassing or discriminatory language or images in electronic communications.

  • Inform employees that all computer pass codes must be provided to their supervisors, and that no pass code may be used that is not provided to the company.

  • Limit the use of the Internet for personal reasons or to access unprofessional, racist or sexually explicit materials.

  • Establish a policy for periodic deletion of e-mails and back-up data to avoid clogging the computer system with useless, dated information.

  • Refrain from disciplining employees whose electronic communications may be viewed as "concerted" or group activity involving terms or conditions of employment.

  • Inform employees and managers that truly confidential communications, such as those on human resources issues or employment-related legal claims, should be sent by nonelectronic means. This will keep these individuals from sending poorly written e-mails on important topics.

Without a proper deletion program, such communications might exist in the company's systems for years, where they may be used against the company in litigation or administrative proceedings. John Lewis (jlewis@arterhadden.com) is a partner in the Cleveland office of Arter & Hadden LLP and is the chair of its Labor and Employment Law Practice Group.