There have been numerous well-publicized cases demonstrating how employers are struggling with developing effective policies and procedures that not only ensure compliance with law (record retention) but also minimize risk when it comes to electronic communications. More and more often, company emails, including those thought to be “deleted,” have been provided as crucial evidence against employers in recent court cases. Examples include messages sent by an alleged sexual harasser, confidential communications between supervisors and managers regarding disciplinary actions and communiqués regarding claims of discrimination or other illegal activities, all of which are discoverable. It is unlawful to destroy email evidence once you have received notice of a lawsuit or during a trial. So whether it is handling Internet, email and instant messaging usage or securing consumer information, don’t let electronic communications be your Pandora’s box.
What Other Companies Are Doing
According to the 2006 Workplace E-Mail, Instant Messaging & Blog Survey by the American Management Association (AMA) and the ePolicy Institute:
- 26 percent of employers have fired employees for misuse of email.
- 2 percent have terminated workers for inappropriate IM chatting.
- 2 percent have dismissed employees for offensive blogging content, including content posted on the personal home computers of employees.
- 24 percent of companies have been served with subpoenas for their employees’ emails.
- 15 percent of companies have gone to court to battle lawsuits triggered by emails from their employees, and the failure by employees to retain certain emails as required has led to significant financial sanctions in some cases.
What To Do
Organizations should implement very explicit policies and procedures that outline what is acceptable and unacceptable use of workplace email systems and the Internet. These polices should clearly advise employees whether the content and use of emails and the Internet will be monitored by the company. In doing so and by providing notice, employees are advised that they may not have an expectation of privacy in using these company-owned systems in the work environment. This can be accomplished, in part, by including these policies in the employee handbook, which should also contain an employee-signed acknowledgement of receipt and agreement to abide by the policies as stated in the handbook.
Consideration should be given to the Electronic Communications Privacy Act of 1986, other federal laws, and related state and local laws. While there are many restrictions on what employers can legally do to monitor employees, employers have the right to protect themselves, to minimize the risk of potential legal exposures and the possibility that email messages may be used as evidence against them in a court of law.
Remember to apply the policy consistently to all levels of staff, from the summer employee to the CEO to those on-site, as well as those who travel or work in remote areas. Require all employees to sign a written acknowledgement that they have reviewed the policy and agree to abide by its terms. Finally, train your employees, supervisors and managers as to why proper use of the company’s electronic communication systems is important. This may help you deflect company legal exposures and lawsuits. For more information and resources go to www.epolicyinstitute.com or contact the EA at www.eaconnect.com. IBI