THE LAW. Don't believe employees' claims about their desktop privacy. Current laws give your organization wide latitude to monitor and restrict employees' use of e-mail, the Internet and other computer use. And courts have typically supported those laws.
What laws come into play? While federal wiretap law bans intentional interception of wire, oral or electronic communication, the law allows a "business exception" if you can justify the monitoring for legitimate business needs or if you gain employees' consent for the monitoring. Most employers can meet this exception if they have a sound policy.
More recently, the Electronic Com-munications Protection Act (ECPA) amended older wiretap law to include e-mail and video teleconferences as part of the definition of "electronic communications." Plus, the Stored Wire and Electronic Communications and Trans-actional Records Access Act hands your organization the power to access communication while it's in electronic storage, as courts have recently upheld.
Yet even if your monitoring system is legal under these federal laws, you still must be wary of possible common law privacy claims from employees who discover that their e-mail was intercepted. Plus, many states have passed privacy-related laws that you must be aware of.
Other potential legal issues: copyright infringement, trade-secret violations, online defamation and harassment.
WHAT'S NEW. More than half of U.S. companies monitor employees' e-mail and enforce violations with discipline, according to a 2003 American Manage-ment Association (AMA) study. In fact, nearly one-quarter of the 1,100 em-ployers surveyed had terminated an employee for e-mail infractions. Three-fourths of the organizations maintain written e-mail policies.
More companies are jumping into monitoring because e-mail now plays an increasingly common role in employment lawsuits and regulatory investigations. E-mail messages are a primary source of evidence in discrimination, sexual harassment and antitrust claims. The AMA survey says 14 percent of organizations have been ordered by a court or regulatory agency to produce employee e-mail, up from 9 percent just two years ago.
HOW TO COMPLY. The good news: In most cases, the law is on your side.
Case law clearly supports the notion that workplace e-mail and Internet access belong to you, not your employees. The key point: Employees don't have a reasonable expectation of privacy.
That's why it's crucial to eliminate any expectation of privacy by drafting a legally sound computer-use policy, requiring employees to sign and date an acknowledgment and putting it in your handbook. Some go further by displaying a policy notice on screen every time an employee logs on, reminding them that their activities may be monitored.
What should be in your policy? At minimum, it should:
- Inform employees that all communication equipment is the employer's business property and that employees have no expectation of privacy concerning its use.
- State that the systems should be used for business purposes only.
- Clarify your right and intention to monitor e-mail and Internet use.
- Explain that a firewall or filter is in place to screen or collect data on incoming e-mail.
- State that no one may transmit company information without the organization's permission and no one may download software or open an ".exe" file from an outside source without the system administrator's permission.
- Include references to "instant messaging" by either prohibiting or restricting the use of IM or by implementing a standard commercial IM application to monitor and manage its use.
Make sure you enforce your policy consistently among employees and without nondiscrimination. By disciplining one worker for accessing auction Web sites but ignoring such behavior with another, you open yourself to a bias suit.
Finally, you'll head off problems by training workers about what's un-acceptable upfront. Define the line between business and personal use and state what, if any, personal use of e-mail and the Internet is acceptable.
The AMA study found that fewer than half of U.S. employers train their workers on their computer policies. Discuss company e-mail and Internet policy during employee orientation, and regularly remind employees via both paper and electronic means. Keep copies of those efforts.
Your ultimate goal: Dispel the illusion that e-mail messages are informal, fleeting and don't matter. If employees wouldn't say it on corporate letterhead, they shouldn't say it in an e-mail.
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