E-Mail Critical To Businesses So Are EMail Policies

June 19, 2002
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GRAND RAPIDS — A local attorney says it might be advisable for e-business firms —functionally almost every company nowadays — to hold a reality check with employees from time to time regarding their use of e-mail and the Internet.

Keith J. Brodie, of Dickinson Wright LLC, told the Business Journal the need arises because workers who use e-mail in their jobs often come to think of e-mail as being a personal convenience. And therein, he said, lie problems of lagging productivity and legal vulnerability.

“Workers have a natural tendency to start thinking they have a right to e-mail for personal purposes,” Brodie said.

“They don’t.”

Part of the reality check, he said, would be to call workers’ attention to the fact that misusing e-mail is the same waste of employer time as chatting on the office phones. Too, in some cases, misusing such equipment can be a criminal offense. And contrary to some workers’ views, he said, constitutional freedoms of expression do not extend to corporate e-mail. Nor does an employee’s e-mail enjoy any privacy guarantees.

Aside from wasting time when they are supposed to be working, Brodie said, most employees also have the mistaken impression that when one deletes an e-mail, it ceases to exist.

“But it doesn’t,” he said, “and it can come back to haunt the employee or the employer or both for years to come.”

He said employees need to know they can get their employer in deep legal trouble by the mere act of downloading copyright material. 

Brodie stressed that unless the employer takes routine special steps to remove inappropriate e-correspondence from its corporate back-up tapes, unauthorized e-correspondence might well wind up being used as evidence in a trial against that employer.

He said e-mail can wind up as evidence in a civil rights or sexual harassment action by an employee against the company, or in a suit against it by an outside party.

Accordingly, he said, the first priority for employers’ own protection is to promulgate an easily understandable written e-mail policy that makes the point that the electronic resources are the company’s property and are intended for business purposes only.

And, Brodie added, if an employer already has promulgated such a policy, litigation in this area is evolving rapidly enough that he believes it probably would be prudent to have one’s attorney review it regularly.

But once the policy is in place, Brodie said, it’s equally important for the firm to be able to show, first, that it actually enforces the policy and, second, that it enforces the policy consistently.

“If you prevent the folks in the cubicles from misusing e-mail,” Brodie said, “you’ve got to apply the same rules to a vice-president, who might do the same thing just because he has a door that he can close.”

Brodie said that it is important for a firm to show that it enforces its policy by:

  •  Requiring employees to read it and sign a statement saying they understand it.

  •  Making sure the policy sets forth what discipline employees may incur by contravening the policy.

Then it must carry forth that enforcement consistently.

There are other steps you can take, according to Brodie.

“You could have a stipulation that understanding and adhering to the policy is a condition of employment. You could spell out the policy’s purpose is to protect employees and employer.

“You also can include a notice in the policy that you have software which monitors the e-mail.

“Some of these monitoring programs come up on the screen when you boot up your computer, and it can be pretty intimidating.”

The reason for going through such exercises, Brodie said, is that in case the firm is sued and subjected to discovery, all the firm’s e-mails may be disclosed.

“Let’s say it’s a sexual harassment suit, and the discovery turns up a bunch of inappropriate e-mails. That’s going to make the defense attorney’s job a lot more difficult.”

Likewise, if somebody uses e-mail to blow off steam about their frustrations concerning a project or a person in a client’s office or a person in the next office, litigation has the effect of making such correspondence become part of the company’s correspondence file.

Brodie said such findings can help draw out the litigation. “And that’s destructive,” he said.  “It hurts the business; hurts its reputation.  Litigation’s costly.  It can be harrowing and it drains management’s energy and steals its energy from business operations.”

He urged businesses not to buy an off-the-shelf e-mail policy or to be satisfied with what he called “model” provisions from consultants.

“They often are not worth what you paid, and are sometimes worse than useless,” Brodie said. “Besides, getting a good custom e-mail policy is inexpensive.”

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