June 25, 2020
An ever-increasing number of employers are streamlining their employee communications systems by providing employee access to the internet and email. Absent a company internet policy, however, the risks inherent in the informal nature of the internet and email can outweigh the benefits of these technologies. Studies show that employee misuse and abuse of the internet and email are on the rise, while electronic monitoring by employers raises concerns about employee privacy rights.
The only way for employers to gain and keep control of their electronic communications is through the development of a clear internet policy and the monitoring of employee internet activities. Distribute your internet policy to all workers and have them sign an acknowledgment that they have read, understood, and agree to abide by the policy. Employees should also be warned that violations of the policy will result in discipline, up to and including termination.
An internet policy that will shield employers against liability and loss should address the following:
Acceptable Use. You may want to restrict employee internet use to work-related purposes or perhaps allow employees limited use for personal email. What is essential is to provide a clear statement of acceptable online use. Otherwise, you may find that your company’s productivity is “caught in the net.”
Limited Privacy Expectations. State that all messages sent or retrieved over the internet are company property and can be monitored. Also state that the company keeps copies of work-related account passwords and that a password does not ensure the confidentiality of employee communications. California courts have held that employees have no expectation of privacy regarding their computers once they are given advance notice of the employer’s computer policy and consent to it. For example, in Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, an employee had emailed an employment attorney about issues she was having at work, from a company computer. She later sued her employer for wrongful termination and sexual harassment, and her employer introduced those emails into evidence. She objected, claiming the employer violated her attorney-client privilege and invaded her privacy by doing so, but the court disagreed, stating she used the company’s computer to communicate with her lawyer knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of email usage. The court went on to note that “the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”
Discrimination and Harassment. Include a provision that downloading or transmission of offensive, obscene, or harassing messages or pictures is against company policy. Employers can be sued for sexual harassment and discrimination if an employee shows pornographic or otherwise offensive internet images to co-workers. One survey found that 56 percent of U.S. employees with internet access have received racist, sexist, or religiously inappropriate email.
Confidential Information. Provide a clear statement of company trade secret and proprietary information policy. Employees should also be warned that confidential company information can be inadvertently disclosed over the internet. One survey showed that 10 percent of employees have received email containing confidential business information.
Copyright Violations. Inform employees that copying software or other material off the internet can violate copyright laws unless authorized by the vendor or author.
Discovery. Remind employees that email is discoverable and does not disappear when employees delete it. Due to its informal nature, email often contains damaging admissions that can be used against the company in litigation.
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.