E-mail monitoring in the workplace: the good, the bad and the ugly.

• Author: Adams, Hall, III

In this fledgling field of law, the safest course for employers is to have a clear written policy that is made known to employees and uniformly enforced

"Gentlemen don't read each others mail." Henry L. Stimson, explaining (some say facetiously) the decision of the War Department to close its decoding office.

"The joke around here is, `Why did it take you 1,700 pages to say: The employer can do it?'" Ohio State law professor Camille Hebert, author of Employee Privacy Law (West 1993), as quoted in "High Tech, Low Privacy," by Michael Higgins, ABA Journal, May 1999.

IF E-MAIL is not already the most frequently used means of communicating in the workplace, it is close to it and gaining on its only rivals--face-to-face meetings and telephone conferences. This year, it is expected that 40 million e-mail users the world over will transmit more than 60 billion electronic communications.(1) Many of these will be sent from, to and within the senders' workplaces. According to a 1998 survey conducted by the American Management Association, 20 percent of companies monitor their employees e-mail, an increase of 5 percent from a similar 1997 survey.(2) As the years pass, it can be presumed that the numbers will be even higher.

These staggering figures epitomize e-mail monitoring by employers and employee privacy rights are significant and timely issues facing the employers and their workplaces.

What are the issues surrounding employer e-mail monitoring, including the rights and needs of companies to protect their property and themselves from liability, particularly with respect to harassment suits? The rights and needs of the workplace must be balanced against the privacy rights of employees. Do employees have a legitimate expectation of privacy with regard to e-mail and Internet use?

One must examine the constitutional, statutory and common law origins of privacy protection for employees, along with applicable case law that has explored privacy issues in the workplace, including e-mail monitoring. The case law and statutes have yet to keep pace with the changing technologies. Currently, there are no clear guidelines with respect to these monitoring issues, but it is evident that employers have the proverbial "upper hand," at least for the time being.

The best defense for an employer in light of the case law and statutory ambiguities is to have a clearly written, uniformly enforced e-mail policy that is disseminated to all employee e-mail users.

THE NEW ENVIRONMENT

For most employers and employees, as well as the rest of us, e-mail is a relatively new phenomenon. It was not so long ago that e-mail was called "electronic mail" and was as foreign a concept as that "information superhighway." E-mail's days of anonymity are long gone. Today, it is a common, if not necessary, tool used to facilitate communication, particularly in the workplace. It has revolutionized the workplace.

E-mail use has exploded, primarily because it is fast and easy to use. In a world of increasing workloads and decreasing available time, e-mail provides a way to manage the burden. If people need an answer to a question, they can just "shoot an e-mail" to our more knowledgeable co-worker. No need to worry about listening to voice mail, or worse, listening to co-workers pontificate on subjects on which they are self-proclaimed experts. No need to worry about the formalities, as well as the time and expense, that a letter requires. E-mail is at once less formal and potentially more personal.

These attributes also may some of e-mail's biggest shortcomings. Less formal means that senders have devoted less attention to what is being written. More personal means that senders may include confidential, offensive or sensitive information, believing that they are sending private, intimate message for the recipients' eyes only.

E-mail has the added benefit of being more direct. There is no lag time between composing the message, sending it electronically, and having it arrive at the receiver's computer terminal. Senders expect and usually receive faster responses to e-mail than to telephone messages and formal written correspondence. Senders can transmit detailed messages and attached documents with relative ease and, best of all, save time doing it.

Today, people do not "think twice" about e-mail. That may be a problem.

Less caution and care can lead to litigation. E-mail can take on a life of its own. It can be distributed, copied and read without senders' knowledge once they hit that "send" button. Witness that poor soul who inadvertently sent a presumably private e-mail complaining about his boss to everyone in the office, including the inhuman boss.

In addition, because e-mail is often used in conjunction with a computer network system, it is stored "on the system," even if users have deleted it from their in or out box. Supervisor can simply have the stored messages printed for their review.

On the other hand, e-mail can be an invaluable legal tool. It provides a "written record" with which to support or defend allegations. This is particularly true in an employment situation where there are claims of harassment or discrimination. The electronic "paper trail" can be used to show what exactly was "said." In addition, e-mail messages may be admissible at trial.

WHY MONITOR?

However distasteful Stimson might have regarded reading another person's mail, employers have some compelling reasons to monitor their employees' e-mail. The reasons can run the gamut from simply monitoring employee productivity and quality control to the more serious purposes of protecting proprietary data or the rights and safety of employees. In one fashion or another, employers always have performed these oversight functions. And now the need for employers to enhance their ability to carry out these responsibilities has never been greater.

A recent Wall Street Journal article(3) demonstrates the heightened need for monitoring in the workplace. The article examines the increasingly popular work-time "activity" of shopping online, sometimes covertly, sometimes not. Of course, they are using employer-owned computers and employer-paid Internet service to facilitate their online shopping. They do not see the problem with a little lunchtime cyber shopping. Many liken it to personal phone calls or talking to coworkers. Many see it as a trade-off for long hours spent at the office.

Problems arise, however, when the shopping takes place while the employee is supposed to be working, rather than at lunchtime, and when company resources are expended as a result of the shopping, such as delivery of packages by the office mail clerks. One administrative assistant interviewed in the article recalled delivering four personal packages to one individual in a single day. One Internet retailer says 65 percent of its orders are placed between 9:00 a.m. and 5:00 p.m. during the week, with a significant falloff on the weekends.

"While many companies these days have taken to monitoring their employees' Internet usage to ensure they aren't accessing pornography or other questionable content, shopping sites usually don't come under scrutiny," the article states. Carole Barnes, a labor and employment attorney, warns that companies should "crack down." She says that excessive junk e-mail created by online shopping could clog a company's server and cause it to crash. In addition, time spent shopping at work, or any other personal Internet use, still boils down to time diverted from business. Cyber shopping is an area employers will have to address and determine what is reasonable and permitted use.

At a minimum, it is not unfair for an employer to insist that employees use their working hours, to say nothing of the facilities and computer equipment provided by the employer, in furtherance of the employer's business rather than surfing the net, visiting chat rooms or piquing their lust by visiting pornographic web sites. What about the employee who has access to patented designs, customer lists, pricing data, marketing strategies or other trade secrets, and at the same time is interviewing with a competitor? Or, the first-year law firm associate who is unwittingly transmitting privileged Client information beyond the firm? How about the employee who is creating a "hostile environment" in the workplace by sending offensively sexist or racist messages or material over the employer's e-mail network? Or the maladjusted employee who transmits defamatory messages about co-workers?

On the other side of the debate are the employees, unions and advocacy groups who fear that without some restrictions on an employer's ability to monitor e-mail, privacy protection will all but disappear from the workplace, resulting in an "electronic sweatshop" where constant monitoring takes place.(4)

While employer monitoring has strong traditions, new technologies promise to make the task easier, less obvious and potentially more intrusive. Some companies are already taking the offensive (no pun intended) and installing software that will limit an employee's access to the Internet or block language considered racist, profane or otherwise offensive. According to a Wall Street Journal article, Bloomberg L.P., an online service that stock traders and others use to access prices and other information on financial markets, as well as to send and receive messages, installed screening software on the computers of its employees and extended it to the company's customers because of fear that offensive e-mails would lead to harassment suits. On a busy day, approximately three million messages cross Bloomberg's 120,000 screens.(5)

Another Wall Street Journal article reports that companies such as 20th Century Fox and Image First, a uniform manufacturer, have installed computer-monitoring devices made by Enron Software Inc. that scans employee e-mail to prevent the transmission of sexually offensive messages. After an e-mail harassment...