A recent front-page article in the Wall Street Journal (February 4, 2000) highlighted some of the perils confronting employers regarding electronic communications sent and received by their workforce. The article, titled "Those Bawdy E-Mails Were Good for a Laugh--Until the Ax Fell," recounted an incident at the New York Times' backroom operation in Norfolk, Virginia, in which 22 employees were summarily terminated. While The Times obviously is reluctant to offer more than sketchy details about the episode, the fact that the firm's chairman, Arthur O. Sulzberger, Jr., was personally involved in the disciplinary measures suggests the gravity of the incident from management's perspective.
What was the nature of the offense? Apparently there was widespread abuse of the company's policy of "reasonable" personal use of the firm's electronic communication systems. The reported e-mail policy reads as follows:
... computer communications must be consistent with conventional standards of ethical and proper conduct, behavior and manners and are not to be used to create, forward or display any offensive or disruptive messages, including photographs, graphics and audio materials.
As was reported in the Journal piece, however, the terminated employees are alleged to have engaged in the widespread creation and circulation of sexually explicit material that ranged from the "sophomoric" to the "pornographic." While the response at first appears to be a policy of zero tolerance on sexual harassment, the issue actually is much more complex than this. This article will detail the law and related issues affecting this emerging source of concern and then will proceed to present the essential components of a policy on electronic communications that should be adopted by all prudent employers who want to successfully navigate this minefield of potential liability.
The legal environment for e-mail
The conflict inherent in the technology behind electronic communications can be viewed as pitting the individual rights of the employee against the legitimate prerogatives of management in terms of the day-to-day operations of the firm. That is, all employees have a reasonable expectation of privacy in the course of their daily duties; but this right must be circumscribed to a certain extent in terms of compliance with company policies and procedures affecting personal behavior.
As a matter of common law, this right to privacy is spelled out in Section 652B of the Restatement (Second) of Torts which details the ways in which a person's personal "space" may be invaded. They are, briefly: "bugging" a person's phone, misappropriation of a person's name or likeness for financial gain, unreasonable publication of personal matters, and presenting a private person in a false light which tends to cause embarrassment to that individual. Of these four common law torts, the first is the principal source of litigation in the realm of corporate electronic communications.
While the case law in this field is in its infancy, certain decisions provide useful guidance in an effort to balance the competing interests involved. In Smyth v. The Pillsbury Company, 914 F. Supp. 97 (E.D. Pa. 1996), for example, the plaintiff was fired for "inappropriate" comments transmitted by company e-mail. In one "indiscretion," the plaintiff referred to the sales management team as a bunch of "bastards" in a memo to his supervisor. In response to this pattern of offensive behavior the management read all of his correspondence, which they then used as the basis for summary termination. Not surprisingly the plaintiff countered by filing suit for an invasion of his privacy.
In finding for the defendant employer, the court held that by venting to his supervisor in such an unseemly manner the employee had clearly waived any reasonable expectation of privacy with respect to the content of his communications. Furthermore, the court held that even if a reasonable expectation of privacy survived, no reasonable person would find that the reading of the e-mail constituted a gross intrusion into the plaintiff's privacy. This case is fairly typical of the recent decisions in this area where the courts strive to balance the legitimate expectation of employee privacy against the sensitivities of a "reasonable" person.
In terms of an employer's right to monitor employee communications, the courts have fashioned two theoretical models--the "context" approach and the "content" analysis. In the first situation an employer may justify e-mail monitoring if notice has been provided to the workforce and the level of surveillance appears to be reasonable. That is, to the extent that a firm insists that all electronic communication be for business purposes only, it may be argued that it has the right to enforce this policy by surreptitious monitoring of the employees' phone calls and e-mail.
In the "content" approach the focus is likewise on the distinction between personal and business communication, but the issue is more a function of what the employee is communicating than how he/she is spending his/her time. That is, in the event that an employee is discovered to have made defamatory, harassing, or otherwise unacceptable comments, such employee may be properly disciplined without regard to his/her right to privacy. This was the case in the New York Times incident.
Employer liability and e-mail
In regard to the need for employers to develop a formal electronic communications policy in order to shield themselves from liability, there are several key points to consider. First of all, any such policy should be in writing and distributed to all employees of the firm. In addition to appearing prominently in the employee handbook, it should be circulated by other means as well in order to assure that there can be no misunderstanding. Also, in order to reaffirm management commitment to other policies it should incorporate by explicit reference the firm's policies on sexual harassment and nondiscrimination in all forms.
In order to defuse any claim of invasion of privacy, it is absolutely essential that the policy should make it clear that the means of electronic communication is the exclusive property of the employer. Also, the policy should state that the employer reserves the right, but assumes no duty, to monitor all employee communications at all times during the employment relationship. Employers also should expressly reserve the right to install software that blocks access to "chat rooms" or other inappropriate Web sites, or to impose similar reasonable restrictions on electronic communications.
Finally, employers should develop a rational and coherent policy of document retention and destruction. By so doing, employers can shield themselves from allegations of selective document "shredding" due to improper motives in anticipation of impending litigation.
Conclusion
This article has merely scratched the surface of a vexatious topic that is proving to be a nightmare in terms of risk management strategies for firms in every industry. The Journal piece on The Times' experience has neatly summarized the source and scope of the problem with the following observation:
As technology blurs the line between private and work time, workers often feel entitled to use company computers for personal matters. Lulled by e-mail's informality and ease of use, they may forget that they are leaving a record of exchanges that in the old days were snickered over at the water cooler, then forgotten.
Clearly it is the obligation of every firm's management to assure that such mental lapses do not occur on their watch, and they must take affirmative steps in order to avoid this electronic pitfall. *
The author
Charlie Morgan, JD, CSP, CPCU, is vice president, risk management of Meeker Sharkey in Cranford, New Jersey.
©COPYRIGHT: The Rough Notes Magazine, 2000