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reduces liability risk

Monitoring of worker e-mail
reduces liability risk

For 40 million American workers, e- mail is an efficient means of communicating a substantial amount of information to many people. Computer files such as financial reports, summaries and marketing plans can be attached to an e-mail message and sent to anywhere in the world, often in a matter of seconds. It is estimated that nearly 42 percent of all employee communications will be transmitted through e-mail this year. Every month, 3 billion business- based messages are traveling through cyberspace.
With all of its advantages, e-mail does present unique problems for employers. By its very nature, e-mail is treated more informally than written communications. As a result, people often make statements in an e-mail message that they would never memorialize in more formal writing. In addition, an e-mail sent to a single recipient can be forwarded by that recipient to others anywhere in the world without the sender’s permission. This is particularly troublesome when a very informal e-mail, such as joke, is intended to be read only by the recipient, but is sent to others.
A single errant e-mail can expose a company to significant liability. For example, a sexually offensive joke was circulated through the e-mail system of a Chevron Corp. subsidiary. As a result of this e-mail, a hostile-work-environment claim was filed against the company. The Chevron subsidiary settled the claim for more than $2 million.
In another case, a woman who was terminated brought a discrimination lawsuit against her former employer. Initially, her suit did not appear likely to succeed because her employer had handled her termination carefully. In fact, the company’s termination letter was referred to as “picture perfect by human- resource standards.”
During the lawsuit, the former employee hired a computer consultant who analyzed the company’s e-mail system. The computer consultant retrieved a deleted message from the company’s president to the head of the personnel department. In the e-mail, the president used blatant and vulgar discriminatory language to order the woman’s termination. Because of this, the company agreed to settle the case with the former employee.
E-mail also has been the subject of commercial litigation. One case involved Siemens Solar Industries’ purchase of a solar-energy subsidiary of Atlantic Richfield Co. Siemens later discovered that Arco withheld information regarding the commercial viability of the solar technology, which was a major asset of the subsidiary. One Arco employee had written in an e-mail: “As it appears (the technology) is a pipe dream, let Siemens have the pipe.” Siemens sued Arco for fraud and misrepresentation; the case is pending.
In addition, defamation claims have been asserted against employers for statements made in an employee’s e- mail; copyright claims have been asserted against employers for employees who have downloaded copyrighted works from the Internet and disseminated those works throughout the company; and liability has arisen by employees inadvertently disclosing trade secrets via e-mail.
To reduce their liability exposure, an increasing number of employers are monitoring their employees’ e-mail. According to a recent survey by the American Management Association, 15 percent of all large companies stored and reviewed their employees’ e-mail messages.
The issue of employer monitoring of employees’ e-mail often is considered in light of employees’ claims to a right of privacy. New York courts do not recognize a common-law invasion-of-privacy claim. There is a privacy statute in New York, but it does not cover matters applicable in an employment context. In other jurisdictions, there are only a few cases that apply the common-law invasion-of-privacy claim in the context of an employer monitoring an employee’s e-mail.
As a general rule, in determining whether an employer’s monitoring activities invade an employee’s privacy, the courts generally consider whether the employee had a subjective expectation of privacy and whether that expectation is objectively reasonable. Courts by and large have dismissed employees’ claims of invasion of privacy on the ground that they had no expectation that e-mail would not be monitored by employers. In many of these cases, the employers had a written e-mail policy that clearly stated the employees should have no expectation of privacy.
As for federal law, although it does not actually cover e-mail, the Electronic Communications Protection Act has been used by employees as a basis for asserting an invasion-of-privacy claim. Employers, however, have successfully asserted numerous exceptions to the applicability of the act regarding monitoring of their employees’ e-mail. One such exception is that the employee consented to the employer’s monitoring activities by using the e-mail system after being given notice that e-mail is subject to monitoring.
In sum, an employer’s best defense to an employee’s claim of an expectation of privacy is an e-mail policy that provides notice that all e-mail is subject to monitoring.
An effective e-mail policy lets employees know that their work-related e-mail is not private, even if an employee is given a password to access the company’s e-mail system. The e-mail policy should prohibit sexist, racist, obscene and other derogatory remarks in e-mail. The policy also should stress that e-mail is to be used solely for business purposes, and that it applies to both permanent and temporary employees using the e-mail system during or after work hours, and on or off of the company’s premises.
An effective e-mail policy should state that violations will result in discipline up to and including termination. The employer should consider designating a specific individual to administer the policy. Finally, employees should be required to sign an acknowledgement indicating they have read and understand the e-mail policy, along with the other terms of their employment.
(Justin P. Doyle is a partner with Nixon, Hargrave, Devans & Doyle LLP. His colleague, Kermitt Brooks, assisted with this article.)


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