Federal Contractor Update in Focus: E-Mail

April 1, 1996 Advisory

The use of electronic mail, or E-mail as it is commonly referred to, is increasing in the workplace by geometric proportions. However, the potential pitfalls are not always obvious. For example, one company was hit with six sexual harassment suits after an employee downloaded adult computer bulletin board entries from the Internet and sent them through the company's E-mail. Another company sued a competitor and a former employee alleging theft of trade secrets, supposedly accomplished through E-mail. Consequently, employers should consider adopting E-mail policies to protect their interests.

Q Are there federal or Connecticut restrictions on an employer's monitoring of E-mail?
A The federal Electronic Communications Privacy Act prohibits unauthorized, intentional access of electronic communications, which includes E-mail. Penalties include monetary damages, punitive damages and attorney fees. Note, however, that the law only prohibits unauthorized access. This issue can be addressed in the workplace through an E-mail policy that specifically authorizes the employer to monitor employee E-mail. Connecticut has no laws specifically regulating E-mail. Some Connecticut courts have entertained common law claims for invasion of privacy in a variety of employment contexts, such as workplace searches of employee lockers or desks, but only where the employee can demonstrate that she had a reasonable expectation of privacy that was violated. In theory, invasion of privacy claims also could be brought for unreasonable employer monitoring of E-mail based on the same rationale. Such claims are not likely to succeed, however, unless the employee could show that he had a reasonable expectation of privacy in the E-mail system. Again, this is an issue that can be adequately addressed in a properly drafted E-mail policy.

Q What should an E-mail policy contain?
A Employers should establish a written policy governing the use if E-mail and distribute it to all employees. In addition, each employee using the E-mail system should sign a computer use authorization form that details all of the important aspects of the policy. The policy and authorization form should expressly advise employees that they do not have a personal privacy right in any matter received in, stored in, copied from or sent from the employer's E-mail system. The employer should reserve its right to monitor the E-mail system to insure that its property is being used for company business and to prevent harassment or any other misuse, and should tell employees that when it monitors the E-mail system, it may choose to read or copy E-mail messages. The policy also should clearly state that the E-mail system is the employer's property, that the system should only be used for company business purposes, and that confidential information received from E-mail may be disclosed only to authorized employees.

Q Besides employee misuse, are there other legal concerns about E-mail use? ?
A In any lawsuit an adversary is entitled to discover information that may lead to admissible evidence. Among the usual forms of discovery is a document request, which courts have held to include electronic messages. If a company does not have a policy that systematically erases E-mail messages after a certain period of time, it could be faced with producing voluminous E-mail messages - a time consuming task and one that arguably could undermine the employer's position in the lawsuit.