October 21, 1999
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By RAGAN WILLIS
Journal Staff Reporter
Since the advent of e-mail and the Internet, taking care of business has never been so easy. Especially personal business.
In most workplaces, its understood how much personal TCB is allowed on the clock. Quick calls to the doctor, babysitter or even hair stylists are generally tolerated, for example, while nattering away about weekend plans or last night's gossip is cut short by an icy glare.
But e-mail has complicated an employer's ability to monitor employees' use of time. Nowadays bosses have only a vague idea whether the clickity-tat-tat of a keyboard are sounds of productivity or an employee goofing off.
Personal time workers spend online may not seem like a big deal. E-mails are quick to crank out and are great for multitasking -- such as e-mailing while waiting on-hold on the phone, for instance.
More and more, however, employers are wising up and putting their foot down when it comes to online use at work.
In a recent survey conducted by the American Management Association -- a non-profit business organization -- nearly 30 percent of the more than 1,000 AMA-member firms polled admitted monitoring how workers spend time online. Two years ago, only 15 percent of companies polled reported that they reviewed employee e-mail files.
That number is even higher for industries handling confidential information. The AMA survey showed 68 percent of businesses in the financial services sector monitor employee use of electronic equipment, for example.
Reasons for overseeing e-mail go beyond wasting work hours. Racist, sexist and otherwise inappropriate e-mails are igniting lawsuits nationwide.
Employees at Citigroup sued the company after getting e-mail at work containing racist jokes; and Chevron shelled out $2.2 million to settle a lawsuit about a widely circulated e-mail titled "25 reasons why beer is better than women."
The bottom line -- draw by the U.S. Supreme Court -- is that companies are responsible for preventing and correcting any sexually harassing or racist behavior, and that includes subject matter passed along over the Net.
Firms can also be held liable for rumors and gossip spread via e-mail, according to Timothy Nielander, an associate in the Technology and Intellectual Property practice of Seattle's Preston Gates & Ellis law firm. After all, sending e-mail from a work terminal is, in essence, sending a letter on company letterhead.
However, monitoring office communications systems has proved as problematic as having no oversight.
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Preston Gates & Ellis |
Nielander says creating a clear e-mail/Internet use policy is the best way companies can protect themselves.
"While nobody likes the notion of an Orwellian 'Big Brother' monitoring employees' e-mail, a company needs to establish policies which make it clear that e-mail is a business tool to be used for company business," he said.
According to the Electronics Communications Act of 1986, which largely protects the privacy of e-mails in transmission or stored, if a business establishes clear rules about online-use, invasion of privacy claims won't hold up in court in most cases.
Nielander said policies can vary, but it's perfectly acceptable for a firm to allow employees personal use of e-mail, while making it clear that such communications are not private and may be reviewed for any purpose.
If no rules are established, however, employees could argue a privacy interest in e-mail upon filing a lawsuit.
In addition to setting up a usage policy that discourages sexual harassment in the workplace and defamation, Nielander recommends including a warning about intellectual property violations. Employees should be wary of downloading digital materials, such as music, images and text off the Internet without knowing if the materials are copyrighted.
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Content Technologies President Peter Kershaw and Michael Overly, an attorney practicing in Internet and online law, offer these suggestions:
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In fact, high-tech firms hawking software solutions to e-mail/Internet abuse are drumming up pretty good business these days.
Peter Kershaw of Kirkland-based Content Technologies said his firm has tripled its revenues in the last year as more corporations clamp down on personal e-mail use.
"There's been a massive increase, both in the corporate and government sectors, of firms seeking solutions to e-mail and Internet abuse," he said. "The companies don't view it as 'e-mail control,' they view it has reducing their risk for lawsuits and lost production hours."
Kershaw says a few recent, highly-publicized incidents have heightened companies' awareness to potential Internet-related problems, such as the Microsoft lawsuit where incriminating evidence found in several e-mails was used in court.
"After the Microsoft suit, and also the Bill Clinton/Monica Lewinsky scandal, firms quickly realized that e-mail can have larger consequences than idle chitchat beside the office water cooler," he said.
Like Nielander, Kershaw advocates developing a company e-mail policy. He also said an enforcer is essential.
His company has a program called MIMEsweeper that acts as an e-mail gatekeeper for the company's communications system, for instance.
When an e-mail enters or exits the system, MIMEsweeper scans it for inappropriate language, or other key words that may alert the company to potential trouble.
Firms need to establish upfront that e-mail is a company-owned system, subject to review, Kershaw said. "Once employees get that message, privacy claims generally become a non-issue, and company risk goes down."
