Article

Employers With e-mail Beware?

August 2006, Auto Dealer Today - WebXclusive

by Ron Smith - Also by this author

Electronic mail (e-mail) has been an excellent invention for companies. It allows executives and employees alike to send messages and get work accomplished without having to leave the office or waste paper. It also allows easy access from other computers outside of the office so that work can be done even when key people are absent from the office on vacations or other leaves. However, like any great invention, there are drawbacks to e-mail systems. Cases are just now getting to the courts concerning privacy issues, employee harassment, trade secrets, union organization and discovery of e-mail in pending lawsuits. While several courts have deferred to legislatures to address the problem, it is wise for employers to take steps now to define the use of their e-mail systems and set ground rules to prevent litigation concerning its use. This article will address several issues that have been recently raised concerning e-mail and how employers can try to prevent similar problems by preventive measures.

The most effective tool is for an employer to implement an e-mail policy. This policy should be added to any existing employee handbooks and in the interim should be distributed by memorandum where the employee signs a receipt in acknowledgment of the e-mail policy. Items that such a policy should address include:

1. THE COMPANY OWNS THE E-MAIL SYSTEM, AND THE SYSTEM SHOULD BE USED FOR COMPANY PURPOSES ONLY. THE COMPANY RESERVES THE RIGHT TO MONITOR THE E-MAIL SYSTEM TO ASSURE THAT IT IS BEING USED FOR BUSINESS PURPOSES ONLY. This statement assists the employer in a couple of different ways. First, it asserts that e-mail is a property right of the employer which cannot be exploited. Thus, employees are not authorized to download the information or otherwise use it for non-company purposes. As a property right, the employee is prohibited from revealing trade secrets which may have been transmitted by e-mail or to disclose or sell the employer's property to another person or entity.

This statement also will prevent an employee from using e-mail as a means to organize a union. As most employers know, they may prohibit union solicitation during working time and in working areas. An e-mail policy which expressly states that the system is to be used only for company purposes should similarly prevent union activities on the e-mail system. Only one case has addressed this issue, and the court found that where employees were allowed to use the e-mail system to distribute materials on many various subjects that had little relevance to the company's business, the employer was held to have discriminated against union employees for only prohibiting union activity on the e-mail system. While the union was already certified in this case, the ruling clearly shows that a company cannot selectively allow its employees to use e-mail for non-company purposes except for union activities.
 
2. EMPLOYEES HAVE NO PERSONAL PRIVACY RIGHTS IN ANY MATTERS CREATED, RECEIVED OR SENT ON AN E-MAIL SYSTEM. INFORMATION OR MESSAGES FROM THE E-MAIL SYSTEM SHOULD ONLY BE DISCLOSED TO AUTHORIZED EMPLOYEES. This statement will prevent an employer from being the subject of a suit for invasion of privacy by the employee. Common law in Indiana recognizes several different ways that privacy may be invaded. "Intrusion" occurs when one intentionally intrudes upon the solitude or seclusion of another. The most recognized intrusion is that of intruding into a person's private life or affairs and interfering with his or her right to be left alone. An e-mail policy which expressly states that no privacy right is created will preclude an employee from arguing that he or she thought that whatever was sent on the e-mail was private information between the sender and receiver.
 
Another way to invade one's privacy is to disclose information to another who has no legitimate interest in the information. To be liable under this invasion of privacy theory, the information must be divulged in an oppressive manner which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities. An example of this theory being used in a lawsuit is disclosure that a co-worker has HIV or AIDS. Thus, a policy which proclaims to only allow disclosure to authorized persons will hopefully limit "gossip" derived from e-mail transmissions. When information is disclosed to employees who have no need to know the information, this may cause the company to waive the attorney/client privilege for any information so disseminated, and also may prevent an employer claiming a "trade secret" when it likewise was distributed to persons without a need to know the information.
 
3. NOTHING SHOULD BE ENTERED ON THE E-MAIL SYSTEM WITHOUT GOOD REASON. This is just one more statement which tries to assure that the e-mail system will only be used for legitimate purposes. Its purpose is to prevent employees from harassing their co-workers, or in general, wasting company time and slowing the e-mail system down for personal purposes.
 
In addition to the above statements, there are other measures an employer should undertake to implement a sound e-mail policy. One important thing every company should know is that e-mail communications are now being requested under discovery rules in lawsuits. Some companies have been burned by admissions made by their executives or employees on the e-mail system. For example, in a multi-million-dollar securities fraud case, an e-mail message was discovered that stated that the defendant's product was invalid because they were operating under the wrong assumptions for years. In another case, an employee claiming harassment was able to discover damaging e-mail transmissions during the lawsuit concerning the harassment. Therefore, employers should counsel their managers (if not all employees) that statements that they make can come back to haunt the employer. Employees should refrain from making statements on the e-mail which will potentially ruin defense of a case that might be brought years down the road.
 
Of course, most employees or managers do not know when something may be later used in a case. Therefore, there is an even safer method for the employer to prevent such e-mail transmissions to be discovered. That involves an employer's adoption of a policy that only retains e-mail files for a certain period of time. Most employers have back-up tapes that retain e-mail files even after they were deleted by the user. If the computers are backed-up monthly, for example, but the back-up tapes are not reused until after a year or so, the potential plaintiff can force the employer to review all back-up tapes for that year's period and gather all e-mail communications concerning the issues in the lawsuit. Therefore, it is advisable that an employer limit the amount of time that back-up tapes are held, at least for e-mail files, and then erase them on a systematic and timely basis. It is important to stress that this system must be followed, or bad faith in doing so may expose the employer to punitive damages. For exa
mple, if an employer has the policy in place to delete all e-mail back-up files every three months, but does not do so, and then "catches up" on such deletions after suit is filed, such actions would be evidence of bad faith and the employer could be enjoined from erasing the tapes or face punitive damages for their actions in doing so when it was not a normal business practice.
While this article was not written with the intent to scare employers, we hope that it did! There are too many risks associated with an e-mail system to not put a policy in place immediately. Please be sure to at least address the items referenced in this article when implementing such a policy.

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