Elements of a Successful E-Mail Policy, Part I

by Gerard Panaro

This is the first in a three-part series on implementing an e-mail policy. This installment will take a look at the basic legal standards, the second will examine applicable laws, and the third will offer the components of a legally sufficient, defensible workplace policy on e-mail.

E-mail is big business and getting bigger: in 1999, the overall market for all e-mail services is projected to be $1.2 billion and the e-mail document volume is expected to be almost 8.5 billion pieces. In 1999, it is projected that almost 9 percent of all company documents will be sent via e-mail. These projections are anticipated to grow in the next few years. For example, the overall market for all e-mail services is expected to be $1.4 billion in 2002; volume is expected to jump to almost 14.6 billion documents; and e-mail will account for well over 12 percent of all documents.*

The problem for corporations is not so much the growth in e-mail cost and volume, but the fact that so much e-mail traffic sent and received at the workplace is personal in nature. And this can (has, and does) give rise to liability for employers on a number of fronts. For example, e-mail that is hostile or offensive to protected groups, such as those of a particular gender, sexual orientation, race, religion, national origin or disability, can be evidence of unlawful discrimination, for which the company will be liable. Attempts to monitor, intercept, retrieve and/or disseminate e-mail messages, in the name of enforcing a corporate policy on the business uses of the system, can give rise to invasion of privacy claims. On the other hand, technology makes it so easy to access, transmit and even alter the most sensitive corporate documents that companies have to worry about their own employees' sharing of confidential information with competitors and other unauthorized persons. In fact, according to an article from the Associated Press, the Raytheon Corp. is suing 21 persons for allegedly disclosing company secrets via the Internet.

And, of course, the Microsoft antitrust trial in Washington, D.C., has given new prominence to the power of e-mail as evidence in court. The headline for a front-page story in the Nov. 11, 1998, edition of the New York Times, for example, was: "Corporate Delete Keys Busy As E-Mail Turns Up in Court." The prominence of e-mail is the result of the Microsoft antitrust trial, in which both sides are using e-mail as evidence either of illegal conduct or perfectly legal business decisions. "[T]he real lesson corporate America is taking away from the Microsoft antitrust trial is that old E-mail can be a mine field of legal liability, not to mention a source of public embarrassment," the New York Times article said. It cited new policies at Amazon.com, the Internet book seller, to the effect that "employees were instructed to purge, among other things, E-mail messages that were no longer required for business or not subject to legal records requirements." On the other hand, employees were also told that there were "some communications that should not be expressed in written form."

This may be a good time for employers who do not have policies on e-mail usage in the workplace to develop them, and for those employers who do have policies to review them to see whether any changes should be adopted. This article will discuss the various legal issues raised by e-mail in the workplace and will give a checklist of elements that should be included in any e-mail policy expected to withstand judicial scrutiny. Although this article will focus mainly on e-mail, other forms of workplace communication, such as voice mail and "snail mail" will also be referred to. While the law treats "wire communications," such as telephone, slightly differently than it treats electronic communications; and while the laws themselves are so complicated that even the courts will occasionally admit they are confusing, there are only two or three basic rules employers have to follow to protect themselves against liability:

• The most important rule is to advise employees that they have no expectation of complete privacy or confidentiality whenever they use corporate communications equipment: whether telephone, ordinary mail, e-mail, the Internet or the computers.
• Employers should limit intrusion into, monitoring, interception or dissemination of employees' private communications to what is necessary to ensure compliance with the policy, protect company property, shield the company from liability, and investigate wrongdoing.
• The standard is one of reasonableness and balance: Were there any expectations of privacy in e-mail on the part of employees reasonable? Was the intrusion into employees' communications on the part of the company reasonable? Did it go only so far as to accomplish its legitimate business purpose, or did it go too far? In each case, the court will attempt to strike a balance between the legitimate privacy expectations of employees, the legitimate interests of the employer in running and protecting its business, and the "public good."

In the next segment of this series, we will take a look at applicable laws.

Gerard P. Panaro, Artabane & Belden, P.C., 2021 L Street, NW, Washington, DC 20036.  Tele (main): 202-861-0070; tele (direct; voice mail): 202-861-1314; fax: 202-861-2939; e-mail (firm (preferred:)) gpanaro@artabane-belden.com; (personal:) gpanaro@mindspring.com

*Source: Thomson EC Resources, EC Market Forecast for Years 1995, 1996, 1997 and 1998

First published on bankinfo.com on 4/29/99