Beware Workplace E-Mail, Survey Says

Smoking gun e-mail has become so common in workplace lawsuits that almost 10 percent of U.S. companies have been ordered by courts to produce employee e-mail, and 8.3 percent have battled sexual harassment or sexual discrimination claims stemming from employee e-mail or Internet use.

According to the 2001 Electronic Policies and Practices Survey, a new survey from the American Management Association, US News & World Report and The ePolicy Institute (www.epolicyinstitute.com), employers have become increasingly aware of the dangers in workplace computer use and are taking steps to reduce their liabilities. Of the 435 employers surveyed, nearly 62 percent exercise their legal right to monitor employees' e-mail and Internet connections. Among employers who monitor, more than 68 percent cite legal liability as the primary reason to keep an eye on employees' online activity. For good reason.

"To reduce electronic liabilities, protect corporate assets and stay out of court, employers must manage employees' online behavior," says Nancy Flynn, author of The ePolicy Handbook, co-author of Writing Effective E-Mail and executive director of The ePolicy Institute (www.epolicyinstitute.com), the survey's co-sponsor. "Written policies and monitoring software are indispensable business tools for employers operating in the age of e-mail and the Internet," says Flynn.

Monitoring is an effective risk management tool, but it cannot eliminate all workplace liabilities. While the federal Electronic Communications Privacy Act (ECPA) gives employers the right to monitor all e-mail traffic and Internet activity on the company system, it does not always prevent outraged employees from filing invasion-of-privacy claims. Flynn advises employers to use written e-mail, Internet and software policies to give explicit notice that: (1) employees do not have a reasonable expectation of privacy; (2) the company has the right to monitor anything transmitted or stored on its computer system; and (3) management intends to exercise that right.

Business is doing a good job of notifying employees of monitoring activity, privacy rights and electronic ground rules. Nearly 84 percent of survey respondents notify employees of the organization's legal right to monitor online activity. Among those monitoring, 86.9 percent have a written e-mail policy; 83.1 percent have an Internet policy; and 67.5 percent have a software policy.

Unfortunately, barely half (50.6 percent) of employers require staff to acknowledge these policies in writing. "Employers can stave off invasion of privacy and wrongful termination lawsuits by securing employees' written consent to have their electronic messages read," says Flynn, who advises employers to have employees sign and date policies to demonstrate they understand them and accept personal responsibility for compliance.

When it comes to saving old e-mail, only 35.4 percent of employers have a document retention and deletion policy in place. "An employer who retains e-mail on a yearly basis, rather than the recommended 30-day period, could spend millions of dollars searching e-mail backup tapes in the event of a lawsuit. That's money spent before ever stepping foot in the courtroom," Flynn says. Because it's illegal to begin a document destruction campaign if pending litigation would be affected by it, employers should establish e-mail retention and deletion policies before trouble strikes.

Survey results related to personal use of company e-mail and Internet systems reveal that 4 in 10 companies (39.3 percent) allow employees full and unrestricted use of office e-mail, while only 1 in 10 (11.7 percent) grant staff the same unrestricted access to the Internet. Among companies that allow personal Internet use, 65.3 percent restrict access to Web sites, with 76.6 percent of employers most concerned about keeping explicit sexual content off employees' screens.

While employers' concern with keeping sexual content off employees' screens is commendable, Flynn suggests employers exercise equal control over other recreational surfing as well. "Hours lost to shopping, chatting and gambling online have the same impact on productivity as time spent downloading pornography," she says. "Reduce liabilities by taking a comprehensive look at -- and restricting access to -- all non-business sites visited by employees."

In spite of employers' efforts to monitor online behavior, only 23.9 percent of companies have instituted training programs to educate employees about online liabilities and policy compliance. According to Flynn, employee education is part of a three-step process employers should follow to reduce electronic risks in the workplace. Specifically, employers eager to reduce employee misuse and abuse of computer assets should:

1. Develop written e-mail, Internet, and software policies designed to keep employees in-line while they are online.

2. Establish an ongoing policy and liability training program for all employees, from the CEO and board members, to senior managers and supervisors, to staff and student interns.

3. Install software that monitors, filters or logs employees' online activity.

"Employers cannot expect employees to recognize electronic risks or comply with policies regarding electronic communication on their own. Ongoing training is critical to the success of an electronic policy program," says Flynn.

Finally, employers should know that one of the best ways to control risk is to control content. "Settle for nothing less than good clean content, free from harassing, menacing, threatening, obscene and discriminatory or otherwise offensive language, and you'll be on your way toward a safe and secure electronic workplace," Flynn says.

Courtesy of ARA Content, www.ARAcontent.com, e-mail: info@ARAcontent.com

EDITOR'S NOTE: Author and e-policy expert Nancy Flynn is available for interviews and can provide real-life disaster stories. Call (614) 451-3200 or e-mail nancy@epolicyinstitute.com. View the complete 2001 Electronic Policies and Practices Survey online at www.epolicyinstitute.com. Review copies of The ePolicy Handbook (Amacom, 2001) and Writing Effective E-Mail (Crisp, 1998) available upon request.