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TECHWORKPLACE
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. Questions and comments on the TECHWORKPLACE are
encouraged. Other articles are available at www.bergerlaborlaw.com.
E-MAULED IN COURT: WHY EMPLOYERS NEED
ELECTRONIC COMMUNICATIONS POLICIES
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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:
TECHGAZETTE - December 1998, Vol. 1, No. 12
The Berger Law Firm, P.C. 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.
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