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Why You Need an E-Mail Policy Now

“Why You Need an E-Mail Policy Now”

40% of e-mails are personal: How to get back to business.

An estimated 130 million U.S. workers send 2.8 billion e-mail missives daily. A recent university study indicates 40% of transmissions on internal office e-mail systems are not work-related. Yet only 25% to 33% of businesses monitor their employees’ e-mail.

The Importance of a Policy

Violations of privacy in the workplace constitute the largest category of complaints received annually by the American Civil Liberties Union. Besides invasion of privacy claims, office e-mail systems have spawned lawsuits alleging sexual harassment, defamation, disclosure of trade secrets and other confidential data, wiretapping violations and challenges concerning to whom business e-mail records should be accessible. "Cyber-loafing" by employees exchanging personal e-mail bulletins curtails productivity at your business.

Creating an e-mail policy will enable you to evaluate your employees’ performance and productivity and will dissuade them from abusing the communications system. Such a policy also will help you protect confidential information.

The Pros and Cons

Legitimate business reasons abound for monitoring your e-mail system, such as:

  • Tracking customers’ correspondence
  • Preventing illegal use, including copyright infringement and sexual harassment
  • Preserving trade secrets
  • Performing system maintenance
  • Retrieving essential data during a worker’s absence

Inform personnel through written policies and on-screen computer messages that you may save or review their e-mail transmissions. This will dispel any reasonable expectation of privacy on the employees’ part. Make sure employees understand that passwords and "message delete" keys will not eradicate your ability to retrieve and monitor e-mail messages from your back-up tapes and hard drive.

You must not lose sight that such vigilance, while necessary, has its downside. Employees may be deterred from using e-mail, which is faster and cheaper than conventional communication outlets and enhances productivity. Also, morale may suffer if workers perceive a work atmosphere in which "Big Brother" is watching.

Should you become embroiled in litigation, you are apt to learn, as Microsoft has, that courts routinely allow opposing lawyers’ requests for company e-mail records, which are costly and time-consuming to reproduce and assemble.

E-mail poses other problems, such as the difficulty in verifying the genuineness of e-mail messages compared to paper correspondence and the ease with which e-mail can be doctored. Anonymous Internet remailers that conceal users’ identities also can impede your attempts to regulate your e-mail system.

Employers Have the Advantage

Employees have not fared well contesting e-mail monitoring on privacy grounds. The Electronic Communications Privacy Act of 1986 includes exceptions that permit employers to review e-mail, including implied employee consent by his or her use of the office system, and where monitoring is for a legitimate business purpose, or to protect the employer’s rights or property.

A company vice president who joined a competitor was horrified when a court upheld the right of his former employer to peruse his e-mail communications to the CEO of his new company to ensure no trade-secret violations occurred. Even an e-mail administrator — who was dismissed for reporting that her supervisor was reading discarded e-mail transmissions — was unsuccessful in getting her job back. As always, consult an attorney before making any such document official.

Writer: Sheldon C. Toplitt is a legal journalist and attorney concentrating in employment and communications law in Needham, Mass.