September 3, 2001—Smoking gun e-mail has become so common in workplace lawsuits that almost 10 percent (9.4%) of US companies have been ordered by courts to produce employee e-mail, and 8.3% have battled sexual harassment and/or sexual discrimination claims stemming from employee e-mail and/or Internet use.
According to the 2001 Electronic Policies and Practices Survey, a new survey from the American Management Association (AMA), The ePolicy Institute, and US NEWS & WORLD REPORT (the August 13th, 2001 issue), employers have become increasingly aware of the dangers in workplace computer use and are taking steps to reduce their liabilities. Of the 435 employers surveyed, 61.6% exercise their legal right to monitor employees’ e-mail and Internet connections. Among employers who monitor, 68.3% cite legal liability as the primary reason to keep an eye on employees’ online activity.
According to the AMA, monitoring is an effective e-risk management tool, but it cannot eliminate all workplace liabilities. While the federal Electronic Communications Privacy Act (ECPA) gives employers the right to monitor all e-mail traffic and Internet activity on the company system, it does not always prevent employees from filing invasion of privacy claims. Nancy Flynn, author of The ePolicy Handbook (AMACOM Books 2001) and executive director of The ePolicy Institute, advises employers to use written e-mail, Internet and software policies to give explicit notice that: (1) employees do not have a reasonable expectation of privacy; (2) the company has the right to monitor anything transmitted or stored on its computer system; and (3) management intends to exercise that right.
According to the survey, nearly 84% of survey respondents notify employees of the organization’s legal right to monitor online activity. Among those monitoring, 86.9% have a written e-mail policy, 83.1% have an Internet policy, and 67.5% have a software policy.
Survey results related to personal use of company e-mail and Internet systems reveal that 4 in 10 companies (39.3%) allow employees full and unrestricted use of office e-mail, while only 1 in 10 (11.7%) grant staff the same unrestricted access to the Internet. Among companies that allow personal Internet use, 65.3% restrict access to Web sites, with 76.6% of employers most concerned about keeping explicit sexual content off employees’ screens. Flynn suggests employers exercise equal control over other recreational surfing as well, to avoid the accompanying loss of productivity and to reduce liabilities.
In spite of employers’ efforts to monitor online behavior, the survey shows that only 23.9% of companies have put into place training programs designed to educate employees about e-liabilities and e-policy compliance. Finally, Flynn says that employers should know that one of the best ways to control risk is to control the content of the sites allowed at the workplace.
