If you monitor employee e-mail, have a policy
By Jeffrey A. Van Doren, JD
Cohen & Grigsby
Pittsburgh
The use of electronic mail (e-mail) and other computerized communication technology has exploded over the past decade. Today, nearly 20 million Americans use some form of e-mail in their daily businesses. Studies predict there will be more than 40 million e-mail users nationwide by the year 2000.
Hospitals and other health care facilities are one of the biggest areas of growth for e-mail. Data from laboratories and other testing centers can be transmitted immediately to clinicians in emergency departments and other acute care settings, thus eliminating the waiting period for reports to be delivered and increasing the quality of care.
As the use of e-mail grows, however, so too has employer monitoring of e-mail messages.
Why monitor?
For employers, there are many reasons monitoring employee e-mail is a good idea. Employers can review employee messages to ensure that employees are working productively rather than using e-mail for personal matters. They also can detect quickly if confidential information is being leaked or if employees are revealing information that could expose the employer to a lawsuit.
For hospitals, the reasons to monitor employee e-mail are even stronger. Official uses for e-mail in hospitals include the transmission of lab reports, patient information, and other confidential information, thus heightening the need for proper use. Inappropriate use of e-mail systems can provide a clever plaintiff's lawyer with fuel for a negligence or malpractice action. By showing a jury inappropriate uses of the e-mail system, lawyers can argue that the inappropriate use is evidence of a lower standard of care by the hospital's employees.
Monitoring e-mail, however, can mean real trouble for employers who do not have a specific policy in place or who do not properly inform their employees about their monitoring policy.
Recent surveys indicate that although many employers routinely monitor employee e-mail, relatively few have formal monitoring policies in place. Even those who do have monitoring policies may not be communicating them effectively to their employees. In fact, a recent survey by a national computer magazine revealed that nearly 60% of companies that monitor e-mail or other employee communications conceal doing so.
The danger to employers who monitor e-mail without a clearly communicated policy is that a thin line sometimes exists between what an employer considers its rights to access and what employees deem an invasion of privacy. Most employees believe their e-mail, like the U.S. mail, is private. Thus, employees who discover that their employer has been monitoring their e-mail messages may believe that their right of privacy has been violated.
Rights of privacy
While the Fourth Amendment protects citizens from government intrusion, it typically is not extended to private employers. But a common-law right of privacy may apply to the private workplace setting. In addition, many states have constitutional provisions guaranteeing a right of privacy to their residents. When employees believe those rights have been violated, they often turn to the courts for relief.
There have been several recent lawsuits by employees against employers for privacy violations for monitoring e-mail or other employee communications. While the courts generally have sided with the employer and dismissed the lawsuits, the costs of defending such actions can be high.
Employers can significantly lower the likelihood of a legal challenge to their monitoring of employee e-mail by letting employees know they should have no expectation of privacy in e-mail messages sent through the company's computer system.
Not only does implementing a monitoring policy and making sure employees know about it go a long way toward providing legal protection, it also maintains good employee relations. A recent study of 214 e-mail users indicated that there was far greater acceptance of employee message monitoring among users when they were notified about monitoring up front.
Preparing a policy
Employers need to consider several issues carefully when developing an effective employee monitoring policy:
* Understand the problems the policy addresses, such as employee confidentiality and ensuring proper use of business resources.
* Identify the type of work force involved (i.e., employees are represented by a union), and how that could potentially affect their acceptance of such a policy.
* Examine any work rules or collective bargaining agreements that may affect the policy. If unions represent employees, bargaining may be necessary before a policy can be implemented for those employees.
* Analyze any procedures already in place that may address the issue and their level of effectiveness.
* Understand how the policy may affect any no-solicitation policy in place that prevents employees from soliciting on the job, for example, selling Girl Scout cookies or soliciting for union organization.
* Develop ways to notify employees of the policy, such as during hiring procedures or through e-mail messages. Also consider having current employees sign an acknowledgment of receipt of any new policy.
When drafting the policy, employers need to be as explicit as possible. Examples of language that could be contained in an e-mail policy includes:
* E-mail is company property and should be used for business purposes only.
* The company reserves the right to monitor messages and disclose them to others.
* Using the system to send offensive or improper messages, such as racial or sexual slurs, is prohibited.
* Using the system to solicit outside business ventures, to leak confidential information, or for personal, political, or religious causes is prohibited.
It is clearly better to assert and document the right to monitor workplace communications before the issue must be settled in the courts. Monitoring e-mail is an employer's right, but it must be done thoughtfully and with proper notice to employees. *
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