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Home / Columns and Features / Viewing workers’ e-mail legal,
but is it appropriate?

Viewing workers’ e-mail legal,
but is it appropriate?

“I think that one of my employees is inappropriately using the company’s internal e-mail to spread gossip and stir up complaints about the company among other employees in my unit. I need to put a stop to that. But to do that, I’ve got to prove that he sent those messages.
“I know my IS department can give me all the messages sent under his sign-on as far back as I want, but I don’t know if I have the legal right to look at those messages and whether that’s an ethically appropriate thing to do.”
First of all, you have the absolute right to access any of those messages as far back as you want. The hardware and software network belongs to your company, and employers have the right to read e-mail, store it and use it to prevent harassment or to conduct investigations.
Though employees–who receive individual passwords or log-in IDs–may think their e-mail messages are private, they are not. Even when they click the “delete” key, their messages are not permanently destroyed.
“E-mail is the same as a company bulletin board,” say lawyers from Nixon, Hargrave, Devans & Doyle LLP on its World Wide Web site (www.nhdd.com).
Legally speaking, you have the right to go in and get as many messages as you want and present the evidence to the employee–but should you?
That’s a bit more complicated. It would help if you had a company e-mail policy to guide you, says Ron Ploof, whose firm–IceGroup Inc. of Wakefield, Mass.–counsels companies on the effective use of “e-munications.”
A survey conducted by the Society for Human Resource Management found that while some 80 percent of companies have internal e-mail, only about 36 percent have policies that govern the use of it.
Such a policy should clearly state that the e-mail is company property, and spell out the disciplinary procedures that would go into effect if the policy is violated.
Some companies “shoot themselves in the foot” when they establish such policies because they limit the conditions under which management may check e-mail, says John Canoni, a partner with Nixon, Hargrave in New York City.
Therefore, the policy should indicate that messages may be reviewed at any time, he says.
In the absence of a policy, however, it is more difficult to figure out what to do. Depending on the nature of the “gossip” and “complaints” being spread via e-mail, you may want to take action. That is, go into your company’s e-mail system, get the messages, prove to the employee that you know what he is doing and confront him about it, Ploof says.
“If it’s hurting the business, then it’s ethical,” he says.
If this is a first offense–and you do not have a policy–you may want to temper your approach a bit. You could call the employee into a “closed-door” meeting and “see if you can work something out,” he says.
But it really all depends on the nature of the “gossip” or complaints going through the system, says Clifford Smith Jr., the Clarey Professor of Finance and Economics at the University of Rochester’s William E. Simon Graduate School of Business Administration.
“How far you go in this situation is one of those difficult judgment calls,” he says.
Smith, who incorporates ethical issues into his courses, raises other questions: How will your actions affect the culture and the work environment in your unit? What if the situation is not as serious as you think it is?
“You pursue this and it turns out not to be a serious issue. But through the office grapevine, someone starts circulating the fact that you went snooping. How big a mess is that going to be to clean up after?” Smith remarks.
You don’t want to go looking in people’s desk drawers for regular mail or memos unless there is some reason to do so that can be articulated, he adds.
“If you don’t want to explain why you did something, don’t do it,” he says.
If the complaints on e-mail have to do with the criticism of a new company program or policy, for example, it might not be a good idea to go after the employee about it.
Many of the best organizations encourage people to be “constructively critical,” he says.
Smith’s advice is to examine the trade-offs thoroughly and develop an appropriate framework for making a decision. By coming down too hard on this employee’s use of e-mail, you might force others to “measure their words by teaspoons,” and potentially cut off ideas and discussions that should be held.
But, on the other hand, if things are too open, you’ll cause more internal problems than your organization wants.
If you had the ability to approach a company ombudsman, Smith says, who might have a different perspective on the issue, that would help.
(Managers at Work is a bimonthly column exploring the issues and challenges facing managers. Contact Kathleen Driscoll with questions or comments by phone at 249-9242 or by e-mail at kadriscoll@aol.com.)

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