May 27, 2005
Friday

Chicago - Every day, millions of employees send and receive e-mails on the job, but how often do they think about who owns the e-mails?

Some might think that if the e-mail is not about company business, the employer cannot or will not monitor these messages, or that their e-mail is not considered their employer's property. Indeed, by the revealing nature of everyday e-mails, it seems that employees view the e-mail that they send and receive on their company's network as private and sacrosanct.

This is not, however, the case. In fact, it is a company's right to monitor e-mail and Internet traffic, to preserve the professional atmosphere in the workplace and ensure that the company's policies are adhered to by its employees.

Companies should be sure to have a policy clearly stated in their handbook that employees sending and receiving e-mail on the company's network should not consider the e-mail private. It is company property, and it may be monitored. Employees should consider all e-mails sent or received on company e-mail addresses to be accessible by the company's information-technologies department and subject to monitoring.

Monitoring may arise for several reasons.

For example, the biggest threat to a harassment-free workplace these days is not a pin-up calendar but, rather, e-mails with inappropriate jokes and pictures circulating in the office. Companies should advise their employees not to send such e-mails, and if they receive them, to delete them immediately rather than forwarding them.

According to the 2004 Workplace E-Mail and Instant Messaging Survey of the American Management Association and The ePolicy Institute, 79 percent of organizations have written e-mail policies prohibiting romantic and racy messages.

In addition, companies regularly monitor the Web sites that employees visit through the company's network to ensure that the employees are not surfing inappropriate sites while at work.

Monitoring Internet traffic and e-mail content ensures that anti-harassment and equal-employment policies are strictly adhered to. According to the 2004 Workplace E-Mail and Instant Messaging Survey, 13 percent of organizations have battled lawsuits triggered by inappropriate e-mail.

An employer's need to see an employee's e-mail also comes up when companies seek to protect their confidential and trade-secret information, or to enforce post-employment restrictive covenants.

Companies have learned through monitoring that their employees are planning to compete with their current employer; that they are sending confidential material to their home e-mail accounts before their departure; or that they are sending these e-mails to their new employer. Monitoring of e-mail accounts and laptops for departing employees takes place to determine if there was any breach of fiduciary duty, or violation of trade-secret laws, confidentiality agreements or non-compete agreements.

Finally, the hottest topic in courtroom battles these days is "electronic discovery." The rules of litigation have long required parties in a case to produce responsive documents in litigation, even if they are stored electronically (such as e-mail).

It has been only in the last few years that courts have made clear that they will enforce a company's obligation to turn over all information that may respond to another party's request - including e-mails that employees have sent or received under the impression that they would not be preserved by the company, or that the company would not monitor the e-mails.

With this new reality requiring the forward-thinking company to create document retention-and-destruction policies to handle potential litigation, employees should know that potentially embarrassing e-mails sent or received behind a closed office door may someday be read in a courtroom. If employees thought of e-mail in this way, e-mail content would be drastically different.

In today's Internet-reliant workplace, e-mail has proven an effective communications tool. But to protect companies and employees alike, employers have a responsibility to monitor their networks, to promptly address any potentially harmful issues, and to be prepared to produce even the most embarrassing e-mail.

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