Less than two decades ago, the cutting-edge technology in the workplace was the fax machine. The workplace of today is dominated by technology like email, instant messaging, voice mail, the Internet, intranet and extranet, cell phones, and blogging. While high-tech tools can help employees do their jobs better, they can also create all kinds of employment issues.
Email poses problems for employers in part because employees perceive informal email messages as the online equivalent of a casual face-to-face conversation. But an email creates a written document, and things go into email that people would never put in a written document. Harassment and defamation claims, in particular, arise from the perceived informality of email. And while an email may have been created informally, it can later be viewed in a very different light. Email is a written record of who said what to whom, and when.
Electronic communications technology poses challenges for employers seeking to meet their obligation to preserve documents that might be relevant in litigation. Courts are holding employers responsible for retaining important emails. The Federal Rules of Civil Procedure were amended in 2006 to address the rise and prevalence of electronically stored information (ESI) and to expressly incorporate ESI into the scope of materials available to an opposing party during the course of a lawsuit. Anytime there’s a reasonable likelihood of a claim, an employer must retain emails that that could be used as evidence in the case.
Employers must be proactive and protect themselves from the myriad of possible electronic communication problems. This can be accomplished, in part, by including workplace electronic communications policies in the employee handbook, which should also contain an employee-signed acknowledgement of receipt and agreement to abide by the policies as stated in the handbook. Workplace policies should not only protect an employer’s business interests, but also the rights of employees. Policies should clearly communicate the employer’s expectations of acceptable behavior and should contain the following suggested points:
- All computers, telephone systems and messages created, sent or received are and remain the property of the company.
- Company computer systems and telephones are generally intended for business-related use.
- The organization reserves the right to monitor information systems and should spell out what systems are subject to the monitoring policy.
- Employees should not maintain any expectation of privacy while using company computers or telephone systems.
- All passwords should be disclosed to the company. Passwords do not imply confidentiality or that the company will not retrieve and review messages.
- Deletion of a message does not mean a company will not retrieve it and read it.
- The dissemination of any offensive, discriminatory, unprofessional or unlawful messages using email, the Internet or voicemail is prohibited and will be considered a violation of company policy, and will be subject to disciplinary action up to and including termination of employment.
- Transmittal of company confidential, proprietary information or trade secrets is strictly forbidden.
- The email system is subject to the employer’s no-solicitation rule.
Remember to apply policies consistently to all levels of staff from the summer employee to the CEO and to those on-site as well as those who travel or work in remote areas. Finally, train your employees, supervisors and managers as to why proper use of the organization’s electronic communication systems is important. This may help you deflect company legal exposures and lawsuits. Create opportunities for continuing education that reinforce training to ensure compliance. Make it a common practice and a way of company life! iBi
