In our withering economy, organizations are increasingly concerned with employee productivity, efficiency and trust-worthiness. Computers and other communication technology can be productivity drains and expose companies to a myriad of liabilities.

Email seems to be the biggest productivity guzzler. According to an ongoing, online survey by MSNBC, 15 percent of workers claim they "constantly" send or receive personal email at work. Another 45 percent say they do so "very often."  Only 10 percent of those surveyed said they "never" send personal email at work.

Email can also be used against employers in lawsuits and is increasingly presented as evidence in court cases involving sexual harassment, discrimination and wrongful dismissal. While many of these cases have sided with employers, finding that employees do not have a reasonable expectation of email privacy, the risk remains. In fact, the mere existence of a personal email password may imply an expectation of privacy.

Courts have recognized more privacy protection for emails sent using personal, Web-based email accounts. In June of 2008, a panel of the U.S. Court of Appeals for the Ninth Circuit in California ruled that personal text messages sent on two-way pagers given to police officers were protected from the department.

Many companies are caught by the belief that owning the technology gives them the right to monitor communications sent through it.  Not true. A companies right to monitor email is limited by the employee's right to a reasonable expectation of privacy. A reasonable expectation of privacy is defined by U.S. constitutional law as a legal test that is crucial in defining the scope of the applicability of privacy protections of the Fourth Amendment to the United States Constitution.  It also states that- "a subjective expectation of privacy is an opinion of a person that a certain place or situation is private" and that "an objective, legitimate or reasonable expectation of privacy is an expectation of privacy recognized by society."

 

Most experts suggest that organizations protect themselves with written e-monitoring or e-mail policies that give notice of proper email use.  The policy should be signed by employees and clearly state how and what correspondence the employer will be monitoring. Such policies go a long way toward protecting employers from employee violation claims of the Fourth Amendment with regard to search and seizure.
 
Issues related to e-monitoring are growing faster than the technology itself.  Employers must also consider rules for blogging, Blackberry correspondence, instant messaging, social networks and inappropriate downloads.
 
It can all be a tad overwhelming. The CD recording titled  "E-Privacy: How to Legally Monitor Electronic Communications" can help. If you need to understand how to legally monitor your employees' use of technology without violating privacy laws, this CD is a must have. 

 

In it, expert John L. Nicholson, Senior Associate, Pillsbury's Global Sourcing Group,presents best practices for dealing with and preventing electronic misconduct.