As e-mail, Internet, and other telecommunications options have come into common office use, employers are increasingly becoming concerned about the possible misuse of these technologies by employees. In order to protect its legitimate interests, the most important action that an employer can take is the development and enforcement of a telecommunications policy. For both legal and practical reasons, all of the rules, rights, and objectives of employer and employee must be clearly stated in the policy. If that is accomplished, an employer will have a great deal more flexibility in handling employee issues.
A recent survey by the American Management Association has found that between 1997 and 1998, employers' use of communications monitoring has risen significantly, especially in the areas of computer and e-mail use. When preparing and implementing a workable telecommunications policy, there are several factors to consider.
First and foremost, an employer's concern is to protect its assets such as trade secrets and confidential information. Because e-mail records are retained in computer systems indefinitely, long after they are deleted, employees may intentionally or inadvertently make sensitive company information accessible through e-mail transfers.
Protecting the licensing of computer software is also a concern. If an employee copies company-owned or licensed software and takes it home or e-mails it to a friend, the employer has violated the license. The reverse problem occurs when employees bring in or download unlicensed software or software that has not been scanned for viruses. If an employee is caught using unlicensed software, the employer can be held responsible for the violation, even if the employer was unaware of the employee's use of the unlicensed software. The "computer police" periodically review software licenses at larger companies.
Other employer concerns are quality control and employees' job performance. Since the employer's name appears on all e-mail correspondence, there is a danger that the company may be associated with inappropriate communications.
Employers also have a legal obligation to protect their employees from discrimination, harassment, and violence. Most people who use e-mail regularly have received a joke from a friend that might have included a sexual, racial, or ethnic statement that would offend someone. This could be viewed as harassment. Although software is available for detecting "inappropriate words" in e-mail messages, the use of dashes or other symbols can easily circumvent such a safeguard.
When you compare the employer's concerns--business assets, harassment protection, and illegal usage of software, with the employee's right of privacy, there is a significant balance in the employer's favor.
The Employee's Concerns
The employee's principal concern is his or her right to privacy, which is based upon legal protections. The Electronic Communications Privacy Act of 1996 is a federal law that imposes limitations on monitoring, specifically on the interception or recording of telephone calls. However, it does not limit monitoring of computer usage, Internet, or e-mail communications because such monitoring does not involve interception. Reading a message is not interception. Some state statutes require that all parties consent to any form of monitoring, and other states are adopting similar requirements. Therefore, the telecommunications policy should give the employer the right to monitor employee communications.
We are not suggesting that "Big Brother" should always be watching. First, it is unrealistic to assume that employees will never use company telecommunications equipment for personal business. Employers know that at some point during any given day, an employee will make a personal call. It is unrealistic to assume that any employee works 100 percent of the time. …