Keep Your Employees' E-Mail from Landing Your Business in Court!

An estimated 1.3 trillion e-mail messages are sent annually, making e-mail one of the most common ways for employees to communi-cate in the workplace. Despite its perceived cloak of electronic privacy, business owners are learning the hard way that e-mail is a visible and potentially perilous communications medium. Daily media accounts of miscommunications, confidentiality breaches, business losses, or explosive courtroom evidence stemming from the use and abuse of e-mail attest to the magnitude of the issue.

E-mail use presents practical business issues when the communication doesn't achieve its intended purpose because of ambiguous, ill-considered, or imprecise content. Any of these may create a misunderstanding or embarrass the author with his or her peers. E-mail abuse and Internet misuse can cripple communications, disrupt operations, or embarrass a business and can lead to legal consequences when the communication includes inappropriate, invasive, inflammatory, or abusive content, or off-the-cuff jargon, ambiguous instruc-tions, imprecise memos, embarrassing gossip, unprofessional language, or breaches of confidentiality. Any of these types of communications can be turned against the author in the workplace or the courtroom.

Many electronic messages would never appear in a formal business communica-tion. Misuse of company computer systems, with violations ranging from inflammatory messages to software piracy, affect companies of all sizes. One company faced multiple claims of sexual harassment because an employee downloaded adult content that appeared on employees' screens when they accessed their e-mail. Another paid $2.2 million for racially charged e-mail messages exchanged by employees.

Managers and their employees must be able to generate messages without compromising sound business practices, while still achieving their communication needs. Knowing when and how to use e-mail appropriately and document work-related activities, external communica-tions, and internal correspondence is critical to a business. To manage these technologies effectively and help protect your business, follow the 3 E's:

1. Enact policies.
2. Enforce them consistently.
3. Educate employees and managers.

Well thought-out policies can help manage technology use to maximize productivity and accountability within legal bounds. Address privacy issues in your policies. Some employees believe their e-mail is private and that personal access to the Web at work is untraceable. Not so. When developing your policies, keep the following facts in mind:

• "Delete" doesn't mean "Destroyed."
• "Password protection" doesn't mean "Private."
• "Unsigned" doesn't mean "Untraceable."
• "Intangible" doesn't mean "Inaccessible."
• "Not printed" doesn't mean "Not discoverable."
• "Unauthorized" doesn't mean "Unaccountable."
• "Personal message" doesn't mean "Nonbusiness record."

Eliminating or controlling e-mail abuse with these proactive techniques can help a business maintain- professional and appropriate online communications-and could make the difference between boardroom and courtroom.

Patricia S. Eyres, Attorney at Law, is president of Litigation Management & Training Services, Inc. and a member of NAWBO-OC. She consults, speaks, trains, and writes on legal issues affecting the workplace. Patricia can be reached at (562) 495-0098.

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