Tend it, don’t end it

Like all company assets, electronic mail is something over which you want to keep control.

By WILLIAM HOFFMAN

Michael Smyth, ridiculing Pillsbury Co.’s sales management and a planned holiday affair, communicated his gossipy comments by electronic mail to his supervisor. Previously assured by Pillsbury that their comments would not be read by management, both believed their exchange was private until they were fired for sending “inappropriate and unprofessional comments” over the company e-mail system.

Smyth’s suit against Pillsbury for invading his privacy was thrown out after a U.S. District Court judge ruled that Smyth sacrificed his privacy right when he voluntarily transmitted his messages over the company’s e-mail system. The judge also ruled that Pillsbury’s “interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments.”

Case closed? Not quite, says Steven R. Wall, a partner at the law firm of Morgan, Lewis & Bockius who represented Pillsbury in Smyth vs. Pillsbury. “The law hasn’t caught up with electronic storage of those transmissions,” Wall notes. For instance, companies that use proprietary third-party services such as America Online may be prohibited under the eavesdropping provisions of the Electronic Communications Privacy Act of 1986 from searching their employees’ e-mail on AOL.

There are no known cases pending before U.S. courts on these grounds. But with e-mail used by more than 90 percent of companies that employ 1,000 or more workers, and with easy setup and access afforded by AOL and local Internet service providers, the management issues are certain to become dicier. “It is a productivity concern,” says Eric Rolfe Greenberg, director of management studies at the American Management Association. “You just want to make sure there is a cost-control measure, that the tool you give people is being used for the intended purpose and no other.”

For the moment, an e-mail policy couldn’t be easier to formulate: Simply tell all employees that they can never use your company’s e-mail system for any personal, non-business-related purpose. Few employers need be that totalitarian. “I’ve always been mystified by the companies that prohibit any personal use of e-mail, because employees have been making occasional personal phone calls since Alexander Graham Bell invented the telephone,” says Lewis Maltby, director of the workplace-rights office at the American Civil Liberties Union. Given that most e-mail systems are quicker and cheaper than local phone service, “You should probably thank the employee for using the e-mail rather than picking up the phone.”

The e-mail industry’s trade group, the Electronic Messaging Association, offers guidelines but no model for a company e-mail policy. “If we were to provide a model policy, people would just have to customize it anyway,” says Paul Moniz, EMA vice president. “In regard to privacy, employees should make sure they understand the company’s policy, and employers should make sure they have a policy and give it to employees so they know what it is.”

Don’t rely on current law in lieu of a written policy. Wall says, “The primary purpose of a published policy is to eliminate any chance that the employees will rely on practices or ad hoc actions in determining what’s right and wrong.” Inconsistent application of a policy could open your company to a wrongful termination or discrimination suit, he notes.

Have your employees sign your written policy, and remind them through bulletin boards and company communications about the essentials of the policy. Offer a resource inside the company who can clarify any misunderstandings. Inform employees if and when your company is likely to review e-mail messages stored on your system.

And, finally, maintain a file for receiving and a process for identifying, terminating and deleting unwanted external communications. Maltby says, “If you tell your employees when you will and won’t read their e-mail, it’ll be very unlikely you’ll have any liability problems down the road.”