When monitoring, clear policy guards against legal problems

Increasingly, business owners are keeping tabs on their employees with programs that analyze inbound and outbound e-mail and monitor visited websites. Many employers argue that snooping is the only way to protect proprietary data, while guarding against potential legal problems triggered by office gossip or harassing comments transmitted via e-mail.

Businesses are starting to crack down on illicit communications, according to the American Management Association (AMA). In its 2005 Electronic Monitoring and Surveillance Survey, the organization found that 26 percent of respondents terminated workers for misusing the Internet. Another 25 percent let employees go for abuse of office e-mail accounts, and 6 percent fired workers for misusing office telephones.

Increasingly, employers are scrutinizing the ‘electronic DNA’ of workers. The majority (57 percent) of U.S. companies now monitor their employees’ e-mail and Internet use, according to IDC, a technology research and analysis firm in Framingham, Massachusetts. That number is forecast to increase dramatically in the coming years.

Why all the fuss? There are four primary concerns, including employee productivity; liability (derogatory and potentially defamatory material sent via e-mail); discoverability (evidence in the form of electronically stored e-mails); and protection of trade secrets and intellectual property.

Companies must not only protect proprietary data, but also guard against potential legal problems that might arise from employee e-mail use, including ‘hostile work environment’ lawsuits (such as charges of sexual harassment). Also, time wasted gossiping via e-mail and surfing the Internet dramatically reduces employee productivity.

And don’t forget about the legal process known as discovery. In almost every lawsuit against an employer, among the first items requested by the plaintiff are all documents related to the case. Documents include those stored electronically, such as e-mails, which can be retrieved even after they have been deleted.

Small firms monitor less
Large companies are more likely than small businesses to monitor their employees. According to the AMA, more than 75 percent of big corporations do some kind of electronic surveillance. Sixty-three percent of them monitor Internet connections, 43 percent track telephone use and 20 percent keep tabs on computer use (who is logged on and the number of keystrokes).

Smaller companies tend to have less restrictive e-policies in place, which is not surprising considering it’s easier to spot shenanigans in a five-person office than a 500-person company.

The decision to police employee e-mail and Internet activity is intensely controversial. The more monitoring that takes place, the greater the likelihood of an employee claim of invasion of privacy.

According to ‘E-Policy Handbook’ author Nancy Flynn, there has been a 3,000 percent increase in privacy lawsuits filed during the last decade, so there is a distinct possibility that a disenchanted worker might seek compensation based on a real or imagined violation of privacy.

Workplace monitoring may also affect employee morale. Several recent studies of communications and clerical workers suggest that electronically monitored workers experience higher levels of depression, tension and anxiety.

The ubiquitous use of technology in the workplace raises new issues for employers who are concerned with keeping company information secure and reducing the risk of litigation. Federal law prohibits intentional interception of electronic communications, but it provides exceptions under the umbrella exclusion ‘during the ordinary course of business,’ or when one party has given either express or implied consent.

There is plenty of room for confusion, especially if an employer has no published policies governing Internet usage. Michael Overly, author of ‘E-Policy: How to Develop Computer, E-mail and Internet Guidelines to Protect Your Company and Its Assets,’ found that only 60 percent of the employers that monitor e-mails actually have a written policy in place. By monitoring e-mails without warning, employers may be increasing their exposure to workplace privacy lawsuits.

Policy a must
The best course, experts say, is to develop an effective policy regarding the use of business equipment. Employers should clearly communicate the policy or policies to employees. Doing so serves to notify workers that they should not expect privacy when using company phones, e-mail or the Internet.

Here a few key steps to consider in developing an electronic surveillance policy:

• • List the electronic information that will be monitored.
• • Define if and when cameras will be used to monitor the office.
• • Post prohibitions prominently and educate employees about enforcement and discipline.
• • Include the e-policy in the employee handbook or display it as a reminder each time employees log on to their computer.
• • Specify when personal use of company equipment is acceptable.
• • Update policies frequently to keep up with changes in technology.
• • Distribute the policy once a year and require employees to acknowledge with a signature.
• • Enforce the policy consistently and promptly.

Electronic communication comes with pitfalls. Employers need to be on their guard to protect the enterprises they have worked so hard to build, and a reasonable electronic surveillance policy is a major part of that protection.

But try to be flexible.