MONITORING EMPLOYEE E-MAIL COMMUNICATIONS AND INTERNET USAGE

By: Jason B. Boudreaux

The evolution of electronic and computer technology is constantly transforming the business world, and over the last decade, the use of computers and the Internet for business-related purposes has expanded exponentially. In fact, the use of computers at work has become a necessity for an ever-increasing number of employees across practically all industries and occupations. This use of technology, of course, offers great benefits through stimulation of economic growth and expansion, but along with those benefits, come risks for employers.

The Internet connects countless computer networks and millions of computers located across the globe, and it is a resource where every imaginable type of information is made available by simply typing in a search word or phrase and clicking a button. This means that with a computer and Internet access at work, it is easy for an employee to read the latest celebrity gossip, check the statistics of his favorite team, plan a vacation, price a new car, read movie reviews, search the classified ads and pursue his or her private interests essentially without limit. The list of things that an employee can do on the Internet rather than work is virtually endless.

This leaves employers with very real concerns about lost work hours due to time wasted by employees surfing the Internet, sexual harassment charges from display of pornographic or obscene materials, trademark and copyright infringement problems from improper use or dissemination of materials owned by an outside party and computer viruses inadvertently downloaded via software applications and/or from third party websites. Employers must also be concerned about potential liability arising from employees’ misuse of company e-mail, including e-mails containing sexual, racial and other forms of harassment, and e-mails including unauthorized disclosure of company information. Employers also face the risk of system wide exposure to destructive computer viruses through e-mail communications.

Employers clearly have a legitimate business interest in monitoring the activities of employees to ensure that the workplace computers are being used for their intended purposes. However, while monitoring employee e-mail communications and Internet usage, employers must balance their legitimate business interests against the privacy rights of employees. Also, from a practical standpoint, there is a concern that over-regulation or overly invasive monitoring of computer and Internet usage will only result in employee resentment and attrition.

Employers are generally allowed under both state and federal law to monitor employees’ e-mail communications and Internet usage, but it is very important that employers make sure that such monitoring does not violate the privacy rights of their employees. This is most effectively accomplished by first insuring that all employees are on notice that they have no expectation of privacy in their use of the property, facilities or resources of the employer, and that they are subject to monitoring at all times. Further, employers desiring to avoid liability for monitoring employee e-mail communications and Internet usage should take all necessary steps to eliminate any reasonable expectation of privacy that employees may have concerning their use of company computers and resources accessed with computers, such as e-mail, the Internet and the company network. This can be done through a clear, well-crafted and comprehensive electronic communications and monitoring policy. The provisions of the policy should be reasonable, set clear and understandable limits on employee use of the employer’s computer systems, and further the employer’s legitimate business interests. Moreover, it is important that the employer be able to document the dissemination of the electronic communications policy to employees. In fact, the most prudent course of action for the employer is to obtain a signed statement from each employee indicating that he or she has received and reviewed the policy.

Among other things, an effective electronic communications and monitoring policy should cover the following:

-It should broadly define employer property, including computers, e-mail, Internet, etc.;

-It should broadly define the actions that are prohibited under the policy;

-It should reserve the employer’s right to monitor all computer usage at all times for compliance with the policy and the right to inspect all of its computers, discs and other electronic media at any time;

-It should provide for application of the policy to any electronic device belonging to the employer used to communicate or transmit information internally or externally;

-It should clearly state that employees shall have no expectation of privacy in their use of the employer’s electronic resources;

-It should identify appropriate uses and prohibited uses of employer property (including a prohibition of copying business information to personal computers absent consent);

-It should advise that all company email is the sole property of the employer;

-It should address whether personal use is allowed, and if so, provide guidelines to prevent excessive personal use;

-It should provide for prohibition of inappropriate, offensive, harassing, discriminatory or defamatory content in all electronic communications, personal or business-related;

-It should provide for prohibition of unauthorized internal or external communication of confidential or proprietary information;

-It should remind employees that job loss, civil liability and/or criminal prosecution may result from certain actions;

-It should remind employees that deleted information may be kept on back-up tapes and recovered at a later date;

-It should provide for the right of the employer to withdraw access to computers, the Internet and/or e-mail from an employee, if needed; and

-It should allow for the possibility of future changes in the policy.

A well-crafted electronic communications and monitoring policy enacted by an employer and reviewed with all employees can provide significant protection to the employer, and it may prevent or protect against misuse of the employer’s computer systems. Also, such a policy can make it easier for employers to discipline offending employees, and it could provide an employer with evidentiary support for defending against lawsuits arising out of computer and Internet usage by its employees.

Accordingly, before monitoring the e-mail communications and Internet usage of employees, an employer is well-served in seeking legal counsel to assist with crafting a written policy that addresses all of the foregoing considerations. Otherwise, in the event of future litigation, the employer might be left with the unenviable task of arguing in hindsight why the privacy rights of its employees are outweighed by the particular business interests of the employer.