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THE THIN LINE IN WATCHING WORKER'S CORRESPONDENCE by Jeffrey L. Berger, Esq. Jeffrey L. Berger specializes in management-side employment and business law, and related litigation in Washington, D.C., and nationally. Other articles are available at www.bergerlaborlaw.com.

One of Scott Adams’ more memorable cartoons has Dilbert asking himself how employees goofed off before computers were around to make them look busy. According to Washington, D.C. management employment lawyer, Jeffrey Berger, employers must ask themselves a different question: what sort of electronic communications restrictions are legally permissible to protect companies from employment law liability and unproductive employees? Although privacy laws restrict the interception of telephone-based communications, Berger contends that employers have the right to maintain and monitor employee standards of conduct. He advises all companies that use the Internet or e-mail to implement written electronic communications policies that cover use, content, ownership, and privacy.

Type of Use - While many employers want to prohibit all non-business use through their e-mail and Internet systems, they question whether adopting potentially unenforceable policies is prudent employee management. A more effective approach is to regulate personal use based on such factors as time, in line with the company policy on telephone calls. Some employers limit personal e-mail and Internet usage to "non-work" periods, such as a lunch break. Another strategy is to prohibit business or charitable solicitation, and mass-mailings, which do not relate directly to the business. Berger cautions employers concerned about union organizing to be particulary careful, since labor organizers have discovered the benefits of e-mails to easily and quietly communicate with potential members.

Content - Given the proliferation of lawsuits in which discriminatory, defamatory, and obscene e-mails create liability against employers, "cyber-harassment" should be prohibited from the company’s e-mail system and its Internet connection. With recent Supreme Court decisions requiring employer prohibitions as a prerequisite for defenses to discrimination and harassment claims, the electronic communication policy should be linked with EEO policies, as well as trade secret and confidentiality restrictions. As Bill Gates has ironically demonstrated, sensitive and confidential information should not be transmitted via e-mail unless the sender is comfortable seeing it in court.

Ownership of Programs and Files - A company should specify that all communications on its computer system, whether personal or business-related, are the company’s property. This will serve to underscore the company’s control over the content of its system and discourage employees from violating the content rule, while insuring the right of management to monitor and access messages if necessary.

Privacy and Monitoring - To avoid potential invasion of privacy claims, Berger advises that the policy should state that the system and its contents are company property and that the company reserves the right to monitor messages and employee accounts, despite the use of passcodes. Information contained in an e-mails may be used to support disciplinary actions and the systems administrator or another responsible party must have passcode access. Employees must also understand that pressing the delete button does not remove material from the system.

Each company should tailor its electronic communications policy to its own needs; striking a balance between productivity goals, legal protection, and workplace culture.

© 2000 Jeffrey Berger

REPRINTED FROM:
WASHINGTON TECHWAY - MARCH 13, 2000
The Berger Law Firm, 1825 Eye St. N.W., Suite 400, Washington, D.C. 20006.
Phone: (202) 861-1361 Fax: (202) 861-1362

Legal advice is case specific and is not intended to be provided by this article.    The Berger Law Firm, P.C. may not be held responsible for any consequences that may arise in connection with the use of or reliance on the information provided.