Law Offices of Kathryn M. Vanden Berk, LLC, October 15, 2004
If you are like most child welfare organizations, you have over the past few years created a large inventory of communications devices that you require your employees to use for work. These tools are so vital to efficient operations that we cannot get along without them. Unfortunately, improper personal use of these tools can lead to trouble (see box). An employer’s exposure for any of these uses is significant. They may jeopardize your reputation in the community, threaten your financial viability, and illegally disclose sensitive or confidential information. To try to prevent this from happening, you need to develop tough but fair approaches that will maintain your control over use of these devices while ensuring that they remain available to further your organization’s mission.
Fortunately, your rights as an employer are recognized in a number of federal and state laws that generally support the belief that an employer must maintain control over communication systems. The cases arising out of them will typically favor the employer—at least where the employer’s policies have been clearly stated and appropriately implemented. (See sidebar for case examples.)
Federal and state laws
Three federal laws address e-mail monitoring. The Wiretap Act1 prohibits the intentional interception or accessing of any wire, oral, or electronic communication. This law was amended in 1986 by the Electronic Communications Privacy Act2 to specifically include e-mail. The amended version allows employers to monitor and access e-mail, so long as employees have been notified of the monitoring or if the communication occurs in the “ordinary course of business.”
In addition, under the Stored Wire and Electronic Communications and Transactional Records Access Act3, employers that provide electronic communication services may access any messages stored in their computer systems without notifying employees of the access.
At the state level, regulation of workplace electronic monitoring is limited, but there are signs of increased legislative activity.4 Most state laws exempt employers who open or read e-mail that originates, or is received, on an employer-owned computer. A few require employers to give employees notice of all forms of electronic monitoring.
I suggest that you evaluate your communication system as a whole, but most certainly place the greatest emphasis on Internet and e-mail use. This emphasis should reinforce the organization’s prohibitions against downloading inappropriate, copyrighted, or virus-infected materials and its restrictions against disclosing confidential and proprietary information. In addition, you should limit your employees’ expectation to privacy in the use and receipt of e-mail. Specifically, the policy should:
1. Notify your employees that your communication system is the organization’s property and is for business use only. Reserve your right to access, review, and monitor e-mail, Internet and phone use, including any data that is stored or transmitted. Establish and publicize the rule that “there are virtually no online activities that can be conducted at the workplace with absolute privacy.”
2. Notify employees that your e-mail and voice mail systems retain messages in memory even after they have been deleted by the user. Although it appears they are erased, the messages are often permanently backed up on magnetic tape, along with other important data from the computer system.
3. Prohibit the use of your systems to transmit discriminatory or harassing messages as part of your “standards of conduct” and harassment policies. If you receive a com- plaint regarding potentially harassing e-mail, investigate and discipline the offender in the same way you would a verbal incident. Include the proper disciplinary action in the policy for improper communications, up to and including termination.
4. Prohibit the e-mail distribution of copyrighted materials without the author’s or publisher’s permission.
5. Prohibit the e-mail distribution of confidential information without appropriate safeguards as to who can receive it.
6. Remind your employees that e-mail is business communication. It should not be casually drafted, nor should it contain typing errors, jokes, inappropriate comments, or personal opinions. Remind them that e-mail will most likely be discoverable in a lawsuit. Also, because e-mail is sometimes so quickly responded to, instruct employees to double-check all addresses and be sure they are not sending the message to someone who should not be receiving it.
7. Developspamfiltersanddelete“junk”e-mail on a regular basis. Develop rules to save, file, retain and/or purge e-mail messages in the system in the same way you save, file, retain and/or purge printed correspondence.
8. Develop virus filters for all e-mail and Internet portals, and instruct employees on how to protect the integrity of your computer system.
Due to the variations in state laws regarding privacy, I strongly recommend that you have all employees sign a consent form permitting you to monitor their use of all communications devices (in particular, e-mail).
E-mail systems, cell phones, and the Internet are only three devices among many that are a part of your employer-provided communications system. While they are the largest part, don’t forget the other components. These include postal mail, fax machines, telephone and voice mail systems, personal computers and computer networks, online services and Internet connections, computer files, video equipment and tapes, tape recorders and recordings, and even bulletin boards and other public posting sites.
The proliferation of electronic communi- cation devices has exploded, and the laws governing your rights as an employer are still being tested. However, early cases provide encouragement that appropriate policies and procedures will be upheld despite the com- peting demands of employees to obtain some privacy in their workplace. Your attention to the development of clear policies and to their dissemination to all employees will help ensure a productive work environment.