Get the message out about employee e-mail policies

by Patricia S. Eyres

With about 1.3 trillion e-mail messages being sent annually, electronic mail quickly is becoming the communication medium of choice in many business settings. But, along with the many benefits that come along with e-mail (speed, ease, relatively low cost), employers are learning the hard way that e-mail is a visible and potentially perilous communication tool.

For example, Chevron Corp. was sued over an e-mail that was circulated within the company that listed 25 reasons why beer is better than a woman. The company ended up settling out of court for $2.2 million, plus attorneys’ fees and court costs.

In another case, two African-American employees brought a $60 million discrimination and retaliation suit against Morgan Stanley & Co. Inc., claiming that they were retaliated against after complaining about receiving an e-mail containing a racist joke. The parties reached a confidential settlement after the court denied the employer’s motion to dismiss.

But these situations don’t just happen in big companies. Employers with as few as 10 employees have had to discipline employees for misuse of company computer systems, with violations ranging from inflammatory messages to software piracy.

E-mail and Internet abuse can cripple communications, disrupt operations or embarrass a company. Also, it increasingly leads to real legal liabilities. Inflammatory or abusive content, off-the-cuff jargon, ambiguous instructions, imprecise memos, embarrassing gossip, unprofessional language or breaches of confidentiality all serve as a fertile source of concern for both e-mail writers and their employers.

But there is hope: Many of these e-mail related challenges can be eliminated or controlled through proactive techniques for generating and maintaining online communications. Following are four critical steps each employer should take to reduce their chances of an e-mail disaster.

Enact an e-mail use policy
To improve control over employee e-mail, adopt policies that clearly define what rights the company reserves and explain that e-mail communications are not private. The policy’s specific language will vary depending on the company, industry and specific needs of the work environment. The policy should be written and incorporated into employee manuals or policy books. Employees, indicating that they have read the manual or policy and agree to be bound by its terms, should sign the policy.

A few common e-mail use policy highlights include:
Permissible use. Make it clear that the business owns the e-mail system. All messages that are created, sent or received using the system remain the property of the company. Indicate that workplace e-mail systems are to be used for business communications only. Personal business is unauthorized and should not be conducted at any time. 

Also, it’s wise to state that offensive, discriminatory or disruptive e-mail messages are strictly prohibited. All non-discrimination policies also should refer to e-mail as a prohibited medium for inappropriate content.

All employees should be aware that access to messages received by or transmitted through the e-mail system are limited to people who need to know the information. Employees should disclose information or messages only to authorized employees. It is equally important to put employees on notice that any communications created, sent or retrieved using e-mail may be read by individuals other than the intended recipient.

Appropriate content. Employees must know specifically what is and isn’t prohibited in the e-mail system. Explain that messages containing insensitive language, racial, sexual, ethnic or religious material is not acceptable. Prohibit all offensive or disruptive messages, as well as abusive, obscene or vulgar language, gossip, ridicule or retaliatory messages. 

Further, explain that downloading sexual, racial, religious or otherwise discriminatory or offensive material from the Internet is not allowed. Finally, inform employees that violations will result in appropriate discipline.

Monitor e-mail. To keep employees in compliance, specifically reserve the right to review, audit, intercept, access and disclose any business or personal messages created, sent or received on the e-mail system. To assure legally sufficient employee consent, the policy should contain a clear description that the employee will monitor the e-mail, which goes well beyond simply reserving the right to do so.

Encourage effective writing
Employers should encourage employees to use effective writing techniques to minimize potential miscommunications in e-mails.

Close the loop. Specify in the policy that employees should close the loop on important issues raised in e-mail. For example, if someone requests information, that information should be provided promptly, or the sender should be notified of foreseeable delays. If an action is requested in writing, but the resolution is not reflected in writing, the courts later may mischaracterize the company’s actions.

Limit off-the-cuff responses. These types of communications often are incomplete or misleading. This is a concern with e-mail messages in particular, as employees tend to write off-the-cuff, conversational messages. These communications don’t use the same tone and format expected of business communications and, during trial, jurors often believe they reflect the writer’s true, unedited intentions. Such messages usually become smoking guns when turned against the writer in the courtroom.

Control of distribution. Require control of copy distribution of all sensitive records or confidential/proprietary data exchanged by e-mail. The policy should inform employees of their responsibilities to safeguard proprietary business records, intellectual property and other company assets from inadvertent disclosure.

Enforce the policy
Establishing a policy is just the first step in limiting liability when monitoring e-mail. Equally important is enforcing the policy in a manner that makes it fully effective in eliminating employees’ alleged reasonable expectations of privacy. 

To make employees continually aware that the policy is in effect, consider using an electronic disclaimer that is triggered each time the individual logs onto the e-mail system or accesses a personal e-mailbox. This also helps to establish that the employee has no reasonable expectation of privacy.

Enforce the policy systematically and regularly, even for what may seem like a minor offense. Failure to do so could result in a waiver of the employer’s rights.

For example, employees may allege that they expected privacy because the employer was known never to enforce its monitoring policy and also was known to be aware that employees were exchanging personal or private e-mail messages.

Be advised, though, that employers must exercise caution and monitor only in situations where monitoring is necessary to protect legitimate business purposes. Train management on the use of the e-mail technology to assure that accidental leaks of information obtained do not occur.

Educate employees and managers
Despite the prevalence of e-mail abuse and consequences played out in the media, many employees still believe their e-mail is private and transitory, and that personal access to the Web at work is untraceable. Employers need to educate employees that this is not so.

A good employee education system alerts employees that the use of passwords does not indicate a message is confidential or that the company won’t be able to intercept it. Also, it should be pointed out that the deletion of a message does not give an assurance that it will not be retrieved or read. Employees should understand that, until the message is written over on the hard disk drive, it is retrievable and the company has the technical tools to do so, and so reserves the right.

As e-mail continues to dominate the business world, it’s more important than ever for employers to keep tabs on employee e-mail messages. Not doing so could leave an organization amid legal troubles. In today’s electronic age, smart employers enact and enforce e-mail use policies and educate employees and managers as to its purpose and use. It’s one measure that could keep employees safe from inappropriate communications and could save the company millions in potential lawsuits.

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