Between the Devil and the Deep Blue Sea: Monitoring the Electronic Workplace; Employers Should Have Detailed, Understandable and Fair Computer, E-Mail and Internet Usage Policies Impartially Administered

Article excerpt

The evil that men do lives after them; The good is oft interred with their bones;

--William Shakespeare, Julius Caesar, Act III, scene 2

I have come to believe that if anything will bring about the downfall of a company, or maybe even a country, it is blind copies of e-mails that should never have been sent in the first place.

--Michael Eisner (commenting to the graduating class at the University of Southern California)

I suggested deleting some language that might suggest we have concluded the release is misleading.

--E-mail sent by Nancy Temple, in-house counsel for Arthur Andersen, referring to an e-mail that was central to the jury's decision to convict the accounting firm

WITH JUST a few clicks of a mouse, an employer may lose valuable trade secrets and confidential information, be liable for violating copyright laws, or be exposed to claims that it permitted a hostile work environment. The pervasive and ubiquitous nature and exponential growth of electronic mail and the Internet highlight the need to monitor the electronic workplace to curb that liability.

Just consider:

* The number of e-mail users increased from 8 million in 1991 to 108 million in 2000. (1) In 2000, 40 million employees exchanged more than 60 billion messages daily. (2)

* According to a 1999 study by the American Management Association, at least 50 percent of all workplace Internet activity is not business-related. (3)

* A study by the ePolicy Institute found that 85 percent of employees admit to recreational surfing at work. (4) Seventy percent of employees admitted to receiving or sending adult-oriented personal e-mails at work, while 60 percent admitted to exchanging e-mail that could be considered racist, sexist or otherwise "politically incorrect." Most traffic to Internet pornographic sites occurs during regular business hours, probably because Internet connections usually are faster in the workplace.

Companies have taken note of these statistics and have adopted e-mail and Internet usage policies that may contain provisions for continuous or random monitoring of usage. The ePolicy Institute study reports that 77 percent of employers monitor employees' e-mail and Internet use. In fact, 10 percent of workers with e-mail/Internet access (about 14 million people) are under continuous online surveillance. (5) About two thirds of employers have disciplined or terminated employees for violating electronic usage policies. (6)

Employers give several reasons for monitoring. Generally, they wish to maintain their professional reputation and image. They also are concerned with employee productivity and business efficiency, as "cyberslacking accounts for 30 to 40 percent of lost worker productivity." (7) With respect to legal liability, one commentator has stated, "Via the recent expansion of the strict liability doctrine of respondent superior, an employee may be held strictly liable for the foreseeable torts and crimes of employees." (8) Therefore, monitoring may assist employers in preventing and discouraging sexual or other illegal workplace harassment, defamation, copyright violations from the illegal downloading of software, music and movies, and the deliberate or inadvertent disclosure of trade secrets and other confidential information. The ePolicy Institute study showed that 68 percent of employers that monitor cite legal liability as their primary reason.

No federal or state statute currently prohibits employers from monitoring their electronic workplace. The federal Electronic Communications Privacy Act and similar state laws provide some limitations, but these limitations can be overcome in the workplace through various exceptions in the statutes. (9) The federal act prohibits the interception of electronic communications such as e-mail. It defines "interception" to mean the "contemporaneous acquisition of the communication," so an interception takes place only when an individual sends an e-mail and a third party is able to obtain a copy of the transmission at the time it is sent. …