Even a small employer’s email system handles a vast amount of traffic. Assume that the average employee in your organization sends or receives 50 emails each day at work. In a typical year the employee will send or receive 13,000 messages, or over one million pieces of email for an organization with only 100 employees!
In the August 2006 Spencer Fane Britt & Browne News Flash, our partner, Frank Neuner, discussed the need to develop an email retention policy to satisfy the duty that parties involved in or threatened with legal action have to preserve relevant records and electronic data. In this issue we explain five reasons why every employer should consider implementing a comprehensive email policy and what to consider in developing such a policy.
Reason One: Email now is a favorite form of evidence in all types of litigation. Emails offer a rich source of evidence because they are usually informal, often erroneously thought by their authors to be private, confidential or protected from disclosure, and because they are easy to search. Employees discuss topics and use language in emails they would never consider appropriate in a letter, report or memorandum prepared for the file. Moreover, employees expect that only the intended recipient will see the email. Consequently, they bypass others in the chain of command that might exercise “quality control” over its content.
Many employees, including supervisors and managers, mistakenly think that their “private” or “unofficial” interoffice communications are not “business records” and will not be subject to disclosure in litigation. This mistake can prove costly when, for example, a supervisor’s email suggests a reason for a subordinate’s termination other than the one shown in the employee’s personnel file. Many supervisors also do not realize that emails are normally not protected by the attorney/client privilege.
Combing through hundreds of personnel files looking for evidence of discrimination in paper records can be a daunting task for a plaintiff’s lawyer or governmental agency. By contrast, searching for similar evidence in emails is a snap.
Investigators looking for confirmation that a supervisor has used racially or sexually disparaging comments can easily search for key words in all of the emails generated by the target. In a case in which “Sue Smith” is a claimant, all email messages in which the words “Sue,” “Susie,” “Smith” appear can be located with a simple search.
Reason Two: Employee misuse of email can lead directly to employer liability. Examples abound of cases in which email misuse has created liability.
The ease with which email can be circulated to large audiences adds to the problem. A vulgar sexist comment made verbally to a single individual might be viewed by a court as a “stray remark” not resulting in liability. The same comment circulated to a whole work group and preserved in an email file is much less likely to escape censure. Furthermore, any derogatory email comment by a supervisor, even if the content does not necessarily give rise to a legal claim (e.g., “I’m sick and tired of dealing with this employee’s constant whining”), can be used in a lawsuit to paint an unflattering picture of the employer and gain sympathy from a jury.
Two African American workers used emails to prove that supervisors exchanged “racially vile” messages. Curtis v. Citibank N.A. Sex harassment claims by four female employees based on sexually offensive emails sent through the employer’s system resulted in a $2.2 million settlement by Chevron. Vandall v.Chevron.
Two African American employees filed a $60 million race discrimination against their employer because of use of company email to circulate racist jokes. Owens v. Morgan Stanley & Co.
Norwich Union paid approximately $1 million to settle a defamation claim by a competitor based on an employee email stating that the competitor was suffering financial problems.
Reason Three: Email misuse and mistakes can put confidential employer information at risk. Many security lapses occur as a result of inadvertent errors and lack of attention. Embarrassing email stories are legion about misdirected messages containing bargaining strategies sent to competitors or confidential pricing information transmitted to customers that resulted from hasty use of the “Reply to All” feature. Some security breaches are intentional. An employee used Borland International, Inc.’s email system to send trade secrets to a competitor for its use in a bid both companies were seeking. The case resulted in criminal prosecutions of both the sender and recipient.
Reason Four: Email use can expose the email system to viruses and slow down the network. Email is the single largest source of computer virus infections, and much of the threat comes from “personal” emails received and opened by employees at work. In addition, receipt and retransmission of “chain” emails or group messages, especially those containing large graphics files, can slow busy email systems to a crawl. Furthermore, individuals who attempt to steal identities and personal information also intentionally try to corrupt email systems, because identity theft is easier when a user can hack into a system that is unstable.
Reason Five: Employee misuse of email can result in lost productivity. Even if the “typical” employee only spends 15 minutes a day of work time reading and responding to non-business related emails, the employer’s hypothetical 100 person workforce will lose over 800 workdays per year to this form of “goofing off” alone.
Reduce Your Risk with an Email Use Policy and Training
No policy can completely eliminate email related problems, but a well crafted policy, employee training, and diligent policy enforcement can minimize the risks. What should you consider as you develop your organization’s policy?
Identify key email risks and common problems so employees understand why your policy exists.
Describe prohibited content.
Specifically prohibit use of the email system to prepare, send or retransmit vulgar, offensive, discriminatory, harassing or sexually explicit messages or emails that contain derogatory references to age, race, sex, religion disability, national origin, sexual orientation, political beliefs (especially in the public sector) or any other protected characteristic.
Describe and explain any prohibition on the use of the email system to communicate confidential business information inside and outside the organization or to comment on customers, competitors, or regulators.
Describe and explain restrictions on supervisory use of emails to discuss HR issues, particularly performance or behavior problems of individual employees; provide guidance on when and to what extent emails should be used as a form of documentation about employee performance and behavior problems; develop a formal training program on when and how to use emails to create appropriate documentation and to avoid liability.
Prohibit use of the email system for any unlawful purpose such as gambling or copyright infringement.
Explain how complaints by employees of co-worker misuse should be handled (e.g. use the discrimination/harassment reporting system, if appropriate).
Explain limits on personal use.*** Set out restrictions on transmission of chain or group emails. Limit or prohibit attaching or opening certain types of files.
Identify any disclaimers, confidentiality notices , or other content that you require to be incorporated in any email generated on the employer’s system.
Outline your standard email retention policy and incorporate your special procedures for preserving emails in the event of legal action.
Describe your email monitoring procedures and clearly notify employees if you intend to monitor employee email use for compliance with your policies.
Clearly explain consequences for violating the policy.
***The National Labor Relations Board is currently considering an important case dealing with employer restrictions on employees’ non-business use of employer email systems. In The Guard Register Publishing Co. & CWA Local 37194, Case No. 36-CA-8743-1, the Board’s General Counsel has taken the position that an outright ban on all non-business use of employer email system is an overbroad no-solicitation rule that violates Section 7 of the National Labor Relations Act, because it may interfere with employees’ protected rights to communicate concerning union issues during non-working time. The employers (and the Board’s Administrative Law Judge at the first stage in the case) have taken the position that an employer is free to ban all non-business use of its communications tools (telephones, copiers, faxes) so long as it does not discriminate against union related use, and that email is just another such tool. The Board took the unusual step of soliciting oral argument in the case in late March and a decision is anticipated in the near future