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"Big Brother" or Just Good BusinessBy Jonathan G. Higie(Editor's Note: This is the third in a series of articles on current challenges to the right of privacy. Prior articles dealt with privacy in medical and court records.) E-mail is here and it is prolific. Many employees now use e-mail as their primary means of communication with the outside world. E-mail has largely replaced the telephone, conventional letter writing and faxes as the preferred method of work-related communication. It has made instantaneous communication possible without needing an available recipient and it can be a discreet way of communicating with someone without requiring the assistance of other employees, i.e. secretaries, mailroom persons, etc. The use of e-mail has, in theory, made workers more efficient and more accessible at any location and at any time of day. Because of the seemingly "personal" and (ironically) "anonymous" nature of e-mail, however, the content of e-mails in the workplace can create significant privacy issues for employers. Protecting sensitive company information from outsiders and determining whether employees are engaged in unlawful or harmful acts online pose urgent challenges for employers. The myriad of possible uses of e-mail has given rise to greater concerns on the part of employers that the use of e-mail by their employees is for legitimate business purposes. The manner in which e-mails are monitored is, therefore, something that every business should consider. Employer concerns about e-mail use has given rise to several software companies that provide e-mail monitoring services. These companies provide custom monitoring services depending on what type of conduct you are seeking to prevent. Besides relieving employers of the time and money to perform this function themselves, it also transfers the duty of monitoring to a more independent third party. This type of arrangement helps to alleviate the feeling of an employee that he was "targeted" by the employer based upon other, unrelated problems. Prior to engaging in any monitoring, however, the company should have a clear written policy (made known to all employees) that e-mail contents are not private and that the company has the right to monitor the same in order to protect itself from breaches of confidentiality and possible illegal activity. Every employee should sign off (literally) on this policy at the commencement of employment with the company. Because the computer system and its related software are presumably property of the company, the employee does not have an expectation of privacy when utilizing it. The type of monitoring is also something that must be considered. Some companies may have an interest in protecting corporate trade secrets, confidentiality of clients' identities or issues relating to racial or sexual harassment and/or discrimination. The monitoring systems in place generally have certain terms or phrases which would be "flagged" and would be the subject of further scrutiny. Because of the significant liability that could attach to employers from these types of actions, it has been suggested by legal authorities that the employer not only has the right, but the duty, to monitor these activities. A company's monitoring system is evidence of its good faith attempt to prevent these problems. Conversely, if a company is aware that this type of monitoring is available and chooses not to do it, possible liability for some causes of action may arise. However, companies must be very careful to be very specific as to what is to be monitored and what use is to be made of the monitored information. The monitoring should not be used to profile employees (i.e. gathering information about their personal habits) or for any other purpose in which the company does not have a legitimate business interest to protect. "Snooping, " as opposed to "monitoring," will be less likely to pass legal muster if challenged when protecting confidentiality or rooting out wrongdoers. If your company is considering a privacy policy, it should be clearly developed, made known to every employee and should be administered by an independent third party. Peacock Keller can assist you in developing such a policy. Find out more about our Employment Law Practice Area. |
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