Fact: A 1996 A.C. Neilsen survey conducted of IBM, Apple and AT&T employees discovered that they spent the equivalent of 1,631 workdays or 13,048 hours on the Penthouse Magazine web site in a one-month period.
Fact: There are over 40 million people in the United States using E-Mail each day. More than 50 billion messages are sent annually.
Introduction
Employers are increasingly forced to deal with issues relating to the misuse and abuse of employee communication systems. Despite the large numbers of employees who have access to E-Mail, the Internet and voice mail at work, approximately 64 percent of companies do not have written policies regarding use of such systems.
Employee Abuse of the Internet For Personal Business or to View Pornographic Material
When the Arizona Republic asked readers to write in and tell the newspaper how they or others abused the Internet at their companies' expense, one woman reported to the paper that she spent her day at work shopping on the Internet. To avoid being detected this woman said she kept another window open, which she could click to quickly. One man admitted that he spent most of his workday online chatting with other sports car enthusiasts.
In 1996, Compaq Corporation fired more than a dozen Houston workers because the employees had made more than 1,000 visits to sex sites while on the job. Similarly, Lockheed Martin Space & Missiles fired two employees for visiting sex sites and making financial transactions online.
Additionally, employees are increasingly accessing information off the web and then reconfiguring it for use in their work. In this way, some companies have come into possession of other companies' proprietary information and could be liable for copyright infringement.
Abuse of E-Mail
Two recent discrimination cases filed in federal court highlight the potentially disastrous results of offensive E-Mail circulated in the workplace. For example, in Curtis v. Citibank N.A., 97 Civ. 1065 (S.D.N.Y. 1997), two black Citibank employees claimed that many white supervisors exchanged "vulgar and racially vile" E-Mail messages that "demeaned and ridiculed African-American people." In Owens v. Morgan Stanley & Co., 96 Civ. 9747 (S.D.N.Y. 1996), two black Morgan employees filed a $60 million lawsuit claiming they were discriminatorily denied advancement in the company. In their lawsuit, Plaintiffs referenced racist jokes disseminated through the company's E-Mail system.
Employers are also at risk if their workers send or receive E-Mails of a sexual nature. See Vicarelli v. Business Int'l, Inc., d/b/a Economist Intelligence Unit, 1997 U.S. Dist. LEXIS 12944 (D. Mass., 1997).
Evidentiary Issues Pertaining to E-Mail Abuse
Contrary to what many employees believe, E-mail does not disappear, nor do many computer files which have supposedly been "deleted." E-Mail and other computer files are backed up onto tapes, often daily, unbeknownst to the creator. The result is that E-Mail trash rarely goes out; and it can be both recoverable and discoverable.
Demands for electronic evidence are expected to increase and become more targeted and aggressive in the future. Courts have already ruled that the burdensome nature of a broad request for E-mail messages does not necessarily preclude their discovery. In In Re Brand Name Prescription Drugs Antitrust Litigation, 94 C 897, MDL 997, 1995 U.S. Dist. LEXIS 8281, (N.D. Ill., 1995), Defendants were ordered to bear the cost of searching through 30 million pages of E-mail despite their estimate that it would cost between $50,000 and $70,000. Notably, the court stated, "[I]f a party chooses an electronic storage method, the necessity for a retrieval program or method is an ordinary and foreseeable risk."
While E-Mail records may contain damaging admissions and information that can be used against the company, employers should not overlook its utility in litigation. For example, in one case handled by the author, E-Mail messages provided the basis for a sexual harassment complaint. But the company insulated itself from liability when it proved that the E-Mails were not "unwelcome" for purposes of sexual harassment law, but solicited by the person claiming harassment. It turned out that nearly all of the E-Mails complained about were replies to sexually provocative statements made earlier by the Complainant.
Monitoring Employee Communications Systems
- Legal Implications
Employers face a legal dilemma when considering whether or not to monitor their communication systems. The concern is that if they do not monitor their systems, they may be held liable where abuses of computer systems occur. However, if they choose to monitor their systems, employers may risk actions for invasion of privacy.
An employer's best preventive measure against privacy claims is to have employees sign an acknowledgment form stating that the employer has a right to monitor E-Mail and that the computer system is the property of the company and personal use thereof is prohibited.
Implementing an Effective Electronic Communications Policy
An effective electronic communications policy should:
- clearly state whether employees are afforded any privacy rights in the use of or in any stored information on electronic communications devices.
- make it clear that electronic communication devices are to be used solely for business purposes.
- state that the policy applies to all employees and contractors using the employer's electronic communication devices.
- provide that the downloading or transmission of offensive, obscene, or harassing messages or pictures is against company policy.
- emphasize the employer's broad right to access information sent from or received or stored on the employer's electronic communications devices.
- advise employees that violations of the policy will result in discipline up to and including termination.
- make it clear that material violations of this policy must be reported to management.
- designate the employer's administrator of the policy.
- state that prior violation of the policy does not constitute a waiver of any subsequent violation.
- require employees and contractors to sign an acknowledgment form indicating receipt of the policy and an opportunity to review it and ask any questions about it.
Additional Considerations
- Consider using software that will effectively block access to pornographic web sites.
- Consider a provision restricting the downloading of information off the Internet, or from other sources, that may be copyrighted, to avoid potential infringement claims.
- Where applicable, advise employees not to disseminate attorney-client privileged information via E-Mail without a "Do Not Forward" instruction. Sending the information to others may waive the privilege and compromise the employer in litigation.
Conclusion
Employers should be aware that electronic communication systems can create many liability issues. A comprehensive and effective policy governing electric communications in the workplace is therefore critical.