Individuals and businesses now dominate what was, just a few years ago, a government and academic medium. A recent study shows that the "more than 97 million people will use the World Wide Web" in 1998. Computer Industry Report, Vol. 32, Number 20, Jan. 15, 1998. That same study indicated that the number of small businesses using the Internet for business communications will continue to grow 34% annually through the year 2001. The number of people who access the Internet from work was estimated in May, 1998 to be 20.4 million. 44 Million Adults Regularly Use Internet. Available: http://www.mediamark.com/pages/prcyber1.htm.
Electronic mail has seen a similar rise in the workplace. As of 1992, there were an estimated 20 million active electronic mail users. Daily Lab. Rep. (BNA) (Nov. 17, 1992). By the year 2000, that number is expected to double. E-mail Communications: The Next Employment Law Nightmare, CA35 ALI-ABA 607 (Feb. 22, 1996).
As with most advancements, however, this increase in the sophistication and use of communications technology creates new opportunities for abuse. The potential for this abuse, in turn, raises issues for employers and employees alike. Electronic mail messages and other digital communications can be more dangerous than paper documents because of the nature of the communication and the risk of misinterpretation:
Social scientists tell us that people reveal their thinking in E-mail, often writing things they would be reluctant to say aloud because of the faceless and seemingly private nature of the medium. It is very risky to have such entries show up in the middle of a deposition or trial, without addressing them in advance and confirming their context. (Ken Shear, Electronic Evidence: It's Not Cutting Edge Any More. Disregard It At Your Peril, The Lawyer's PC, Aug. 1, 1994.)
Although e-mail should be treated as carefully as a letter from attorney to client, it often is not. A disturbing scenario is the discovery of electronic mail messages sent within a company or even between attorney and client. Users assume the system is secure because they must enter a password before using it, but this is far from true. Such communications are often backed up and stored indefinitely as part of a company's system security plan. Those same mail messages, however, may be the subject of a document request, subpoena or "hacker " months after the mail recipient deleted the message from his or her system.
Employer Liability from Electronic Communications
The increased use of communications technology by employees exposes their employer to liability in a number of ways. Many existing claims, such as sexual harassment, wrongful discharge, and discrimination, take on a new light when the computer is the medium for the wrongful behavior, or when electronic communications are used as evidence.
Generally, companies can be held liable for the acts of their employees if the acts take place within the scope of the employment. In 1995, the United States Court of Appeals for the Fourth Circuit held that this liability even applies to sexual assaults by managers on employees:
Here Batchelor's assaults took place in the workplace, during working hours, on an employee whom he had authority to hire, fire, promote, and discipline. . . . Thus, under common law agency principles, Batchelor was acting within the scope of his employment with Cavalier, and so Cavalier is liable for Batchelor's assaults on Martin. (Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1352 (4th Cir. 1995))
Sexual Harassment
Title VII of the Civil Rights Act of 1964 prohibits sex discrimination by making it "an unlawful employment practice for an employer (1) ... to discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex." The law was initially used to cover more traditional forms of discrimination: hiring, wages, and other benefits and working conditions. However, because it covers "terms and conditions " of employment, plaintiffs began to use it to cover situations where women were subjected to different treatment simply because of their gender.
Under EEOC guidelines, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when: (a) submission to such conduct is a term or condition of employment; (b) submission to or rejection of such conduct is made the basis for an employment decision; or (c) such conduct interferes with work performance or creates an offensive working environment.
The United States Supreme Court addressed the standard for "offensive working environment " claims in the fall of 1993 when it decided the case of Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993). Harris involved complaints that a female employee, Harris, was subjected to abusive behavior by her supervisor, the company's president, Hardy. Justice O'Connor related the relevant facts:
Hardy often insulted [Harris] because of her gender and often made her the target of unwanted sexual innuendoes. Hardy told Harris on several occasions, in the presence of other employees, "You're a woman, what do you know " and "We need a man as the rental manager "; at least once, he told her she was "a dumb ass woman " . . . . in front of others he suggested that the two of them "go to the Holiday Inn to negotiate [Harris'] raise " . . . . Hardy occasionally asked Harris and other female employees to get coins from his front pants pocket . . . .(114 S. Ct. at 369.)
Harris quit her job and filed a Title VII lawsuit against Forklift.
The Supreme Court decided that the appropriate standard to apply to determine whether conduct creates an offensive work environment was an objective standard - whether the work environment would be hostile or abusive to a "reasonable person. " The employee must also subjectively perceive the environment to be so abusive as to have actually altered the conditions of her employment, but a jury must ultimately decide whether her perception or reaction was reasonable. Whether an environment is "hostile " or "abusive " requires looking at all the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; and whether it interferes with an employee's work performance.
Based on the Harris standard, it becomes clear that even verbal or written conduct can give rise to a "hostile environment " claim under Title VII, if it is sufficiently severe and pervasive to alter an employee"s working conditions. With the increasing popularity of electronic mail and Internet access, the opportunity for abuse and the creation of "hostile work environments " now also exists on the information superhighway. In Knox v. Indiana, a state employee sued for sexual harassment based in large part on electronic mail messages sent to her by her supervisor:
Starting in December 1991, Stewart began sending Knox electronic mail messages asking her for sex. He often propositioned Knox using acronyms; for example, he frequently asked her whether she wanted to have a HGTWM, which was later translated as a "horizontal good time with me. " Stewart also repeatedly asked Knox out on dates, calling her on the telephone and leaving messages reminding her to check her e-mail. . . .
Stewart initially denied any knowledge of why Knox would have filed a complaint against him, but his tune changed when he found out that the investigator had copies of the e-mails he had sent to Knox. (Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996)).
The United States Court of Appeals for the Seventh Circuit affirmed a jury verdict for the employee based on her Title VII claims.
In addition, many courts have held that the display of pornographic or other offensive material can give rise to a hostile environment claim. For example, in Hammill v. Albemarle County Sch. Bd., the plaintiff, a custodial worker, alleged that her supervisor "uttered sexually explicit remarks to and displayed nude pictures for her. " (65 Empl. Prac. Dec. (CCH) 43, 222 (W.D. Va. 1994)). The court concluded that these allegations were sufficient for the plaintiff to avoid summary judgment on her Title VII sexual harassment claims. With the vast body of inappropriate material available on the Internet, the risks of a hostile environment from the electronic display of such material have increased.
Discrimination
In addition to harassing messages, courts have begun to rely more on electronic mail messages as evidence of an employer"s alleged intent to discriminate against employees on some impermissible basis. In Strauss v. Microsoft Corp., 856 F. Supp. 821, 825 (S.D.N.Y. 1994); 814 F. Supp. 1186, 1194 (S.D.N.Y. 1993), the plaintiff sued alleging gender discrimination. Her claim was based in part on lewd electronic mail messages sent by her immediate supervisor to both her and other members of her department. Relying on the United States Supreme Court's decision in St. Mary's Honor Center v. Hicks, 113 S. Ct. 954 (1983), the District Court for the Southern District of New York held that the plaintiff had provided sufficient evidence to withstand Microsoft's motion for summary judgment, based in part on the electronic mail messages.
In another example, an employer confidently showed a fired employee's lawyer the textbook-perfect letter of dismissal that the employee -- a woman -- had been given. The plaintiff's computer investigator countered with an earlier E-mail communiqué he had reclaimed from files presumed deleted. The four-letter-word-strewed diatribe from the company's president to its personnel director essentially read, "Dump the "bitch." " [Note: this case allegedly settled for $250,000.] Phaedra Hise, The Perils of E-Mail, Inc., Aug. 1, 1993 at 38.
Similar evidence can exist in age discrimination cases. In Kelley v. Airborne Freight Corp., the Company"s Vice President of Human Resources sent messages like "I hope we have enough to avoid a wrongful termination, " and "This man Kelley is not worth risking our jobs for. " The jury, relying in part on the e-mail messages, awarded the plaintiff a $3.3 million verdict. Daily Lab. Rep. (BNA) (June 18, 1992).
Union Issues
Allowing postings on bulletin boards potentially opens the door to use of that medium for union postings. In Central Vermont Hospital, 288 N.L.R.B. 514 (1988), the employer had a bulletin board on which it allowed employees to post information of a general nature. There was no restriction to hospital-related business only. However, the employer required employees to obtain prior approval before posting a notice. When an employee asked to post a pro-union flyer, the employer denied the request. The employee filed an unfair labor practice charge. The National Labor Relations Board concluded this was a violation of the statute:
By discriminatorily refusing to allow employees to post notices relating to union and protected concerted activities on bulletin boards that are available for general use by employees, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. (Id.)
Not surprisingly, the same analysis has been carried over to employers who provide an electronic mail system for their employees" general use. In E.I. DuPont de Nemours & Co., 311 N.L.R.B. 893, (1993), the administrative law judge found that "electronic mail has become an important, if not essential, means of communication. " The judge then noted that the company allowed employees to use electronic mail for a variety of subjects:
The large volume of electronic mail messages in evidence reveals that the Company permits employees to use the electronic mail to distribute a wide variety of material on many subjects. These messages, sent from employees" computer terminals to sometimes hundreds of other terminals where the messages can be read on the screen or printed out, include poems, notices, or discourses on such topics as boredom, drugs, educational co-ops, Erich Fromm, Federal Express, higher education, IRS, liberal arts, life, mortality, philosophy, TV programs, religion, riddles and attempted answers, skin cancer, victory, and words of wisdom.
The judge then noted that the employer restricted union related messages, and found that to be a violation of the NLRB:
Yet the Company prohibits any employee, whether or not a representative of the Union, from using the electronic mail to distribute any union literature or notice. I find that this prohibition clearly is discriminatory.
The efficiency of electronic mail for work-related activities can, therefore, help a union supporter as well. Electronic mail provides union organizers or supporters with speedy communications and access to multiple employees at once. Indeed, such systems are arguably more effective than bulletin boards, since an employee may be less likely to actively approach and read a bulletin board, whereas he would almost always read a new electronic mail message on his computer. In addition, e-mail gave the union access to the growing number of telecommuters employed in today"s workforce; these employees would otherwise be difficult to reach because of their limited physical presence in the workplace. See generally, E-Mail Communications: The Next Employment Law Nightmare, CA35 ALI-ABA 607 (Feb. 22, 1996).
Monitoring Electronic Communications
Just as employees can abuse electronic mail, employers may also abuse their ability to monitor an employee"s use of such systems. Under federal and state laws, employers may be liable for intercepting their employees" private electronic mail messages. Federal wiretapping statutes provide that
"[A]ny person who-- (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."
Unauthorized access to stored electronic communications is also prohibited by federal law:
"[W]hoever intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility and thereby obtains . . . access to a wire or electronic communication while it is in electronic storage . . . shall be punished . . . . "
However, there is an exception for the provider of the service:
"Subsection (a) of this section does not apply with respect to conduct authorized -- 1) by the person or entity providing a wire or electronic communications service . . . . "
The statute"s distinction between "interception " and "retrieval " generally allows employers to retrieve electronic mail messages stored on their networks, even if those messages were written by employees for personal reasons. This rule, however, is not universal, and does not address the possibility of common law invasion of privacy claims.
In Bohach v. Reno, 932 F. Supp. 1232 (D. Nevada 1996), the Reno Police Department searched messages sent to digital pagers belonging to various officers. The officers claimed a violation of the Fourth Amendment and the Federal Wiretapping statute. The court said that (1) the officers had no reasonable expectation of privacy under Fourth Amendment because they were told their messages would be logged on the computer network, and were told certain types of messages were prohibited; and (2) there was no violation of federal wiretapping statutes because there was no interception of the communication, but instead a retrieval of a communication after it had been stored in a computer file.
An "electronic communication " consists of the "transfer " of the signals, data, and other items . . ., but does not include their "electronic storage. "The treatment of messages in "electronic storage " is governed by 2701-11, not by the restrictions on "interception " set out at 2501-22. 2701(c)(1) allows service providers to do as they wish when it comes to accessing communications in electronic storage.Moreover, while one phase of an Alphapage transmission (from the pager company to the recipient pager) may involve a radio broadcast, the earlier phase at issue here (from the user"s keyboard to the computer) is essentially electronic mailand e-mail messages are, by definition, stored in a routing computer. (932 F. Supp. at 1234-1236.)
The court also recognized that the employer"s warning to employees diminished their expectation of privacy:
That only a diminished expectation of privacy would be reasonable in this case is also suggested by [the order] . . . notifying all users that their messages would be "logged on the network " and that certain types of messages . . . were banned from the system. (932 F. Supp. at 1235. Brown v. Waddell, 50 F.3d 285 (4th Cir. 1995) (holding that use of a clone pager was an interception)).
The Federal act allows for both criminal penalties and a private right of action, so employees can sue for improper interception of their electronic mail messages. Many states, including Virginia and Maryland, have similar statutes prohibiting interception of electronic communications.
Common Law Privacy Claims
Employees may also sue employers for common law privacy invasion when their electronic mail messages are retrieved. In Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996), the employer fired the employee for sending inappropriate electronic mail messages, and the employee sued for wrongful discharge in violation of Pennsylvania public policy. The employee claimed that public policy against privacy invasions prohibited the employer from reviewing personal e-mails. The court rejected the employee"s claim:
[W]e do not find a reasonable expectation of privacy in e-mail communications voluntarily made by an employee to his supervisor over the company e-mail system notwithstanding any assurances that such communications would not be intercepted by management. Once plaintiff communicated the alleged unprofessional comments to a second person (his supervisor) over an e-mail system which was apparently utilized by the entire company, any reasonable expectation of privacy was lost. (914 F. Supp. at 101.)
Although this was a very favorable ruling for employers generally, and recognized the legitimate interest in prohibiting inappropriate electronic messages, there is no guarantee other courts will follow the reasoning.
Disclosure of Information by Internet Use
Very often mere use of the Internet or electronic mail can be traced to the originating company or firm. This can occur whether the sender intends to identify his employer or not. Some electronic mail programs automatically insert a signature file at the end of every message, which identifies the name and company of the sender. Also, use of Internet mail addresses can identify a company. For example, rasatter@mwbb.com easily points to "mwbb " as the domain source of the message. Because this disclosure is often inadvertent, employees may make inappropriate comments that are later attributed back to their employer.
The following message was sent to a group of several hundred law librarians around the country, at firms, companies and law schools:
> Hi!!
>
> I am looking for articles or books on Law Firms working in a team
> environment. I did a Nexis search and found a few articles. If someone
> has put together a bibliography on this topic that would be great.
>
> Thanks,
>
> Dxxxx Sxxxxx
> Xxxxxxx Insurance Company
> dsxxxxxx@xxxxxx.com
>
A few hours later, the following response went not just to the Insurance Company representative, who may have even been a client, but to every member of the library group:
From: jennywxxx
To: Dxxxx Sxxxxx
Cc: law-lib
Subject: Re: Law Firms Team Environment
Date: Thursday, April 18, 1996 10:44 AM
This is a joke, right? Law firm employees working as a team? I"m rolling
on the floor with laughter. Ooops! Time for a vacation!
The opinions expressed are mine & mine alone.
Jenny Wxxxxx
Mxxxxx & Dxxxxxx
Such messages, needless to say, reflect poorly on employers.
Precautions: Employment Policies and Training
The best precaution against inappropriate use of a system is to have a good policy and good training. Electronic Mail Policies should contain the following:
- Procedures addressing the proper and improper uses of the firm's e-mail system and Internet access.
- The policy should also inform employees that the system is the property of the firm, is subject to audit and review by the firm, and that only firm business and appropriate communications should be sent via e-mail.
- The policy should inform employees that anything they write could be held against the firm, its clients, or themselves, since it is available to anyone with access to firm computers.
- The policy should remind employees that they should not use UPPERCASE for emphasis; "to the unsophisticated, caps make points look more significant than they were meant to be. "
- Be careful about jokes and sarcasm; neither one can be consistently interpreted the way the reader meant when being read by an outside reader.
Receipt of any policy should be acknowledged in writing by the employee and documented in his or her file.
Like e-mail policies, employers who provide Internet access to their employees should develop policies outlining acceptable use of the system, and warning about the risks of downloading inappropriate material and sending inappropriate messages across the Internet. Both of these policies should be consistently and routinely enforced.
Employee training can also help avoid abuses of the system. Training should cover:
- How to use the resources available;
- Effective and appropriate communication; and
- Practical Internet issues, efficient searches, reliable sources, etc.
This McGuire Woods article is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. McGuire Woods does not intend to create an attorney-client relationship by offering this information, and anyone's review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have legal matter requiring attention.