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E-mail is a staple of business culture. Worker e-mail use is growing exponentially. Last year 130 million workers sent 2.8 billion e-mail messages daily. While it is a cost-effective way to enhance and speed business communication, e-mail's pervasive use can also create liability risks. Many employers are monitoring employee e-mail, requiring organizations to balance employee privacy rights against their potential liability exposure.
Areas of potential liability include:
- Invasion of employee's workplace privacy
- Sexual and racial harassment and discrimination
- Defamation
- Trade secret disclosure
- Use of e-mail for criminal activities
E-mail's powerful nature is, in a sense, its downfall. The ease with which information is transmitted and collected causes people to be less careful about communications. People say things over e-mail they would never otherwise communicate in person or in writing. E-mail has far greater potential for permanent and extensive distribution than any other form of written communication. Forwarding to numerous recipients is effortless and that lack of effort may lead to unintended forwarding. Employees can have almost unlimited access to information from global websites and discussion groups - including cyber porn sites and hate group bulletin boards. The very versatility and simplicity of e-mail undermines a company's ability to protect its trade secrets and other confidential information.
While the legal issues raised by e-mail are not new - privacy, discrimination, defamation - there is little law regarding how old laws apply to cyberspace. The lack of legal definition advises employers to proceed cautiously by establishing carefully considered policies on what constitutes appropriate e-mail use and the mechanisms for enforcing the policy.
The following principles should form the basis of a company e-mail and Internet policy:
- All electronic communications, including e-mail and computer contents are property of the employer
- Employer reserves the right to monitor, access and disclose, at any time, all matter sent over the system and/or placed in storage
- Employee has no reasonable expectation of privacy in any matter sent over or stored in the system. The existence of "password" and "delete" functions do not restrict the employer's right or ability to access and disclose electronic communications
- Solicitation of any type over the system is prohibited
- The system should not be used to convey improper communications, e.g. messages that are derogatory, defamatory, obscene or inappropriate. Offensive, demeaning or disruptive messages are prohibited. This includes, but is not limited to, messages inconsistent with employer's EEO policies
- Highly confidential, sensitive or otherwise proprietary information should not be sent by e-mail without encryptions
- Violation of the policy may result in discipline up to and including discharge
For more information about employee e-mail, privacy and other employment law issues, call Krukowski & Costello, S.C. at (414) 423-1330, or e-mail educational services.
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