Wednesday, June 1, 2011

Email and the Law of Unintended Consequences

The subject of employees' email privacy comes up a lot, both in this blog and in employment law and litigation generally.  Last week's Week in Review, for example, cited a federal court judge's decision that an executive's emails, sent to his wife from his work computer,  were not protected or privileged, and could be used as evidence in a securities fraud case.  Evidence gleaned from emails shows up in many, if not most, harassment cases, and emails are a common source of evidence about the legitimacy of an employer's "non-discriminatory business reason" for an adverse personnel action.  Given all the talk about it, it's amazing how often work email is used - by managers and non-supervisory employees alike - for inappropriate purposes.  I sometimes wonder whether sitting down in front of a computer screen diminishes common sense.

We had occasion recently to review hundreds of thousands of internal emails for a client.  Although we weren't looking for them, we ran across a remarkable number of emails that I'm sure the authors never wanted their employer to see.  A year-long affair between employees was documented in more than a thousand emails, ranging from sweet and silly to downright pornographic.  Another employee's feud with a neighbor was the subject of hundreds of long emails clearly written during work hours.  A supervisor wrote in detail about his efforts to undermine a subordinate because the subordinate's brother had crossed him.  Another supervisor wrote to employees spelling out instructions on how to game the employer's time-keeping system.  An employee sent out numerous emails, including bills, relating to a separate business he was running from the employer's computer.  We felt compelled to turn over many of these emails to our client, the employer, and the employer had to make a series of difficult decisions about what to do about them.  It caused us to wonder if all employers' email records would reveal such improprieties if they were reviewed.

Our experience suggests that inappropriate email communication comes from (and to) employees at all levels and in all industries.  It has come to replace lunchroom and water-cooler gossip, and unlike gossip, it lasts forever, exactly as written, on a hard drive.  Email and the internet offer employees unlimited communication with almost anyone, on any subject.  So what's an employer to do?

  • As discussed in earlier posts (here, here, and here), it's essential to have clear policies, consistently enforced, about email and internet use at work.
  • Employees need to be educated about the potential consequences of inappropriate emails.  Employers should consider training that includes examples - like the ones described above - of situations from other workplaces in which thoughtless communication has caused real trouble.
  • Managers and supervisors need to be part of the solution.  That means holding them accountable for their own email and internet use.  They should be encouraged to model good behavior and to be alert for inappropriate communication.
  • Employers should consider monitoring of email and internet use.  There are numerous monitoring programs available.  Although constant monitoring is often too time-consuming, random or targeted monitoring can yield good results. 
  • If monitoring reveals inappropriate communications, the employer should respond by letting the employee(s) involved know what's been found and why it's a problem.  Discipline may or may not be appropriate, but making employees aware of monitoring provides an important reminder of the employer's determination and ability to enforce its policies.

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