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In the Justice Department’s antitrust prosecution of Microsoft, e-mail messages between Bill Gates and Microsoft executives are playing a critical role in the government’s case. In fact, much of Microsoft’s legal strategy has been focused on spinning Gates’ candid and allegedly predatory e-mail directives as benign business conversation. Other companies have been similarly shocked to see racist and other discriminatory statements in employee e-mail resurface as evidence in court, such as in the recent 3.3 million dollar age discrimination verdict against an Airborne Express subsidiary. High technology companies, who generally promote employee use of electronic communication, are particularly susceptible to the problems and liability created when employees misuse or abuse e-mail and the internet in the workplace. The speed and ease of paperless communication tends to promote a candor and informality that would not exist if the conversation was, for example, written and sent on company letterhead. Unfortunately, paperless communication is not entirely "paperless" as virtually all e-mail is logged or recorded as it passes through the computers on a given network. Such records have become the first documents sought by plaintiffs attorneys in business or discrimination lawsuits, and can often be recovered by computer records consultants, even after messages are "deleted." As we have seen in the Microsoft case, a few poignant e-mail communiques can have a much greater impact in court than hours of staid, coached testimony in terms of expressing ideas, goals, and motivation. In order to minimize potential liability and raise employee awareness regarding appropriate use of e-mail and the internet, prudent employers are now adopting electronic communications policies. While there are state and federal privacy laws protecting against the interception of telephone based communications, employers have the right to maintain and monitor employee standards of conduct. To avoid potential invasion of privacy claims, an electronic communications policy should state clearly that the system and messages are the property of the company and the company reserves the right to monitor messages and employee accounts at any time. Moreover, as passcodes generally imply a level of privacy, a policy should also specify that messages and accounts are not private, and that information contained in an e-mail may be used to support disciplinary actions. As an electronic communications policy is intended to complement the employer’s existing employee management system, the policy should reiterate that "cyber-harassment" by discriminatory, defamatory, obscene, racist, or sexist messages or material will not be tolerated. Furthermore, the policy should caution against employee use of e-mail or the internet in violation of the company’s EEO, sexual harassment, and trade secret/confidentiality policies. An electronic communications policy also provides an employer with the opportunity to educate employees on specific computer system and security concerns. Provisions often include reminders to check internet downloads and e-mail attachments for viruses, limits on mass mailings and use of copyrighted internet material, and prohibitions against allowing unauthorized access to the system. Finally, as Bill Gates has ironically demonstrated, sensitive and confidential information should not be transmitted via e-mail unless the sender is comfortable seeing it again in court. Electronic mail and the internet has rapidly evolved as the communications medium of choice in the Information Age. Even in cyberspace potential employment law pitfalls exist, however, with appropriate planning and training these issues should not be an impediment to the high tech employer. Copyright © 1998 Jeffrey Berger REPRINTED FROM: |
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