Most companies have a policy outlining the acceptable uses of e-mail while at work along with a warning that the employer reserves the right to read any mail sent or received by the employee.
Employers often choose not to bother doing so, but there are some legal reasons to keep an eye on what’s going on.
“From a legal standpoint, many discrimination or sexual harassment claims state that someone used insensitive or inappropriate jokes in an e-mail,” says Tom Simmons, partner and chair of the labor and employment practice group for the Cleveland office of Arter & Hadden. “These were forwarded on to other people, and they end up being used as evidence.”
In harassment claims, pornographic e-mails are often the root cause.
“There are people that never in a million years would they walk down the hallway at work carrying a Penthouse Magazine, but they’ll send pornographic e-mails to 20 co-workers,” says Simmons. “I’ll never understand why someone does that.”
The other primary reason is to make sure employees aren’t sending trade secrets or other confidential information to competitors. This is especially true when someone might be leaving the company.
Having an e-mail monitoring policy in place can help prevent all these potential problems. A strong policy may not necessarily lead to people being caught, but will probably have a preventative effect.
“You do have to be careful if you monitor e-mail,” says Simmons. “The most common claims you get out of monitoring are either from the Federal Electronic Communications Privacy Act or an invasion of privacy.”
To eliminate those violations, Simmons says you need to remove the expectation of privacy with a policy that:
- States e-mails will be monitored by the company.
- Explains that computer systems are company property and should only be used for business purposes.
- The employee signs, showing he or she understands the policy.
“There should also be some periodic reminder about the policy, at least every quarter or every month,” says Simmons. “If you do your monitoring legally, you’ll be less likely to be sued. If you do get sued, you’ll be in a good position to win. If you have a policy and the employee signed off on it, they’ll be in a difficult position to say they had an expectation of privacy.”
