11/ 17/ 2006
by Beth Gaudio, NFIB Legal Foundation
Communication in the workplace has changed dramatically in the past 10 years. Electronic communications like e-mail now exceed traditional communication media, such as phones, memos and meetings. While electronic communication provides many benefits, it has brought many headaches to business owners and managers. But protections are available for companies.
Courts generally find that an employer has a right to monitor employee use of electronic communications. In fact, the Electronic Communications Privacy Act of 1986 includes two provisions that specify an employer's right to monitor e-mail messages on the company's system. According to one business survey, 77.1 percent of U.S. corporations monitor some form of their employees' communications, whether phone calls, computer files, e-mail or Internet use.
To protect your company from liability associated with inappropriate e-mail usage, establish a written policy and make sure that all employees are aware of the policy, and the consequences that will occur if the policy is violated.
Establish a written e-mail policy
Any company that makes electronic communications equipment available to employees should have a policy that explains the company's rules for e-mail use and warns employees that they should have no expectation of privacy in their e-mail use. Even if a company has not established a system for monitoring e-mail, it must protect its right to do so. If a company has not reserved its right to monitor employee communications, an employee might sue for violation of privacy.
Courts generally uphold employer sanctions against an employee for improper use of computers and e-mail if the employer has communicated its policy to the employee. You should require employees to sign a form acknowledging that they have read the policy and agree to abide by its terms. The policy should explain the purposes and advantages of monitoring, the right of the company to do so and specific rules for employee computer use. In Delaware, employers must get a signed acknowledgement form from their employees before monitoring e-mail. Other states are also considering legislation with similar requirements.
The e-mail policy should also provide the company's position on personal use of e-mail. For example: "All messages composed, sent or received on the e-mail systems are the property of [insert company name]. These communications are not the private property of any employee. The use of the electronic mail system is reserved solely for the conduct of business at the company. It may not be used for personal business."
Alternatively, your company may choose to enact a limited personal use policy such as: "All messages composed, sent or received on the e-mail systems are the property of [insert company name]. These communications are not the private property of any employee. Any personal use of [insert company's name] e-mail system should be kept to a minimum and be as brief as possible. Personal use should be limited to breaks or personal time."
Benefits of an e-mail policy
1. Protect against legal liability for the content of e-mail messages that may be sexually harassing, violent or discriminatory; that create a hostile work environment; or that involve illegal activity. In addition to employer responsibility for the content of employee e-mail messages, your business could be held liable for inappropriate employee use of the Internet in the workplace. For example, if you are aware that an employee has accessed pornography or child pornography using company computers, your business is legally responsible for taking action within the company and possibly alerting outside authorities. Turning a blind eye to improper Internet use could result in lawsuits if a third party is harmed by the illegal activity.
2. Improve productivity and efficiency by reducing time at work that employees use for personal business. Companies lose money when employees spend their time on the Internet shopping, sending and receiving excessive personal e-mails, checking sports scores, downloading music, etc. With a "business-only" or a "limited personal use" e-mail and Internet policy, employees will be more productive.
3. Protect private company materials that are sent and received via e-mail. The e-mail policy should clearly state what may or may not pass through the company Internet system.
4. Avoid viruses from Internet downloading or personal e-mails with attachments that could cause company computers to crash. Also, excessive Internet use outside of company purposes, such as playing games, can use up valuable space on a company's system.
An employee handbook is an excellent way to communicate a company's electronic communications policy to employees. For more information on employee handbooks and Internet and e-mail policies, NFIB members can go to www.nfiblegal.com and obtain a complimentary copy of the NFIB Legal Foundation's Model Employee Handbook for Small Business.
