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Cyberspace at Work: E-Mail
- if you have it, you need a two-part e-mail policy...what to retain and
what you can monitor.
There are two parts to
a smart e-mail policy. The first deals with protecting the company
from disclosure of information in discovery or regulatory actions. The
second, although related to the first, is the right of an employer to
monitor its employees' e-mail communications. As distasteful as
monitoring communications may be, an employer could be held liable for
defamatory remarks made by employees, improper solicitation by use of
the in-house e-mail network and other improper uses of e-mail. This
may leave the employer little choice.
One option is to create
an e-mail policy, instructing the employees of potential litigation
problems resulting from the informal communication style inherent in
the medium. Many companies have been faced with disclosure of sexual
remarks, made during an e-mail transmission, about someone who was
prosecuting a sexual harassment case. It's not easy for a company to
defend against something it doesn't see.
Explain what should be
maintained as a matter of company policy, and what should not. Explain
the even after the e-mail has been "erased" it may linger
forever, in backup tapes and stored printouts. Teach the employees
that nothing should be "said" by way of e-mail which
couldn't appear in a memo or letter. E-mail lends itself to a more
relaxed and less guarded manner of communicating. Remind them that
this could lead to misunderstandings and unwarranted liability.
The policy should also
set out the rules for the use of the e-mail network, and the
"don'ts." No offensive material, racial or ethnic slurs,
off-taste comments, nothing illegal, etc. If the company seeks to
monitor, or wants to reserve the right to do so, without risking a
violation of privacy charge, the company should inform its employees
of the reserved right to monitor and, if necessary, disclose e-mail
communication. Remind the employees that there are extensive backups
of all communications, and often the e-mail is imbedded on the hard
drive also, and may be resurrected by modern technology methods even
after multiple reformatting.
If the employees are
members of a union, you may also need to check the collective
bargaining agreement to see if it includes any restrictions on the
employer's right to monitor e-mail. (The NLRB has determined that
monitoring e-mails is a collective bargaining issue. To read more
about this, click here.)
On the flip side, the
more the employer monitors, or reserves the right to monitor e-mail
content, the more responsibility may be inferred by persons seeking to
hold the employer liable for the employee's statements. The courts
these days are more likely to find liability on website operators that
reserve the right to censor and monitor posts. This should be weighed
against the likelihood of outrageous conduct on the employees' part.
As the law evolves in this area, e-mail policies can be defined with
more certainty. But even with uncertainty, being without one is being
unnecessarily at risk.
Consult
your counsel about helping you format a policy that fits your
company's style and needs. Feel free to
contact
us for more information about e-mail policies, especially for the
smaller to medium-size corporations.
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Parry
Aftab, Esq., 
Marvel and
all character names and the distinctive likenesses thereof are trademarks of
Marvel Characters, Inc., and are used with permission. TM & © 2004 Marvel
Characters, Inc. All rights reserved. “Super Heroes” is a Co-owned registered
Trademark.