Office e-mail belongs to firm
| • | Take steps to prevent workplace e-mail abuse |
By Adrienne Ancheta
Advertiser Staff Writer
It's time for a coffee break at work and your favorite Internet browser is on the screen of your company computer.
Your fingers itch to check your personal e-mail, check out that fun surf-cam Web site, or do some quick online shopping. You just want to check on one little thing, and you're not even technically on company time.
Succumbing to that temptation, however, could mean more than just giving in to guilty pleasure. It could cost you your job.
Laws differ from state to state. But, by and large nationally, employers have the right to monitor e-mail and Internet use without having to inform employees. Employers cross the legal line only if they have created a clear expectation of privacy, and that is rare and hard to prove.
Indeed, if you're one of the 41 million Americans who have access to e-mail and the Internet at work, workplace consultants say you need to understand the evolving, often complex legal climate there, how to navigate it, your rights within it, and, equally important, the rights of your employer.
In Hawai'i, state law does not prohibit private companies from monitoring their employees' activities on the Internet. On the Mainland, several lawsuits have been brought by company employees charging invasion of privacy, but the resulting case decisions have favored companies in most instances.
In one Pennsylvania case, insurance agent Richard Fraser was fired by Nationwide Mutual Insurance for using company e-mail to explore opportunities with a competitor. Fraser sued based on privacy rights but lost in federal court. Judge Ana Brody of the Eastern District of Pennsylvania ruled that employees working on company computers — even from home — are fair game for electronic monitoring. In other words, sending or storing e-mail on company networks is the same as putting a hard copy in your personnel file.
"Generally, it has been concluded that an employer's e-mail system does not give an employee privacy rights," said Jeff Portnoy, a lawyer with Cades Schutte Fleming and Wright in Honolulu. "If you're an employer, absent some agreement to the contrary, you have the right to control business computers."
Companies are not even required to inform employees that their Internet activities may be monitored because there generally is no expectation of privacy on company-owned computers.
Practicalities of policies
Most large corporations in Hawai'i have written Internet and e-mail use policies that state unprofessional use of Internet and e-mail are prohibited. The policies are distributed in employee handbooks. Some agencies and companies use other methods of distribution as well. Employees and students at the University of Hawai'i, for example, can access their policy on the Internet.
Some companies such as Verizon, Kaiser and First Hawaiian Bank also have employees sign agreements stating that they've read and understand the company's policy on Internet and e-mail use. In addition to the written policy, employees at Kaiser are sent quarterly reminders via e-mail.
At First Hawaiian Bank, Internet use outside of business communications is prohibited. The policy is outlined in the employee handbook and the company also asserts the right to monitor e-mail and Internet use. Employees are also required to sign a statement that they understand company Internet policies.
"Basically the guidelines are that use of e-mail should follow the same standards as written business communications and should be written in the same style and care as a business document," said Gerry Keir, executive vice president for corporate communications. "We do tell people that there is not an expectation of privacy and that we can go through (e-mails)."
And across the country, firms of all kinds are increasingly concerned with what their employees are saying in company e-mail and where they're wandering on the Internet on company time. It's driving many to monitor their workers' electronic messages and even their Internet surfing with software capable of scanning for inappropriate words and phrases.
About 45 percent of American companies now monitor their employees' electronic communications, including e-mail and Internet use, according to the 10,000-member American Management Association. About 55 percent of firms surveyed use some sort of blocking software to prevent unauthorized use of communications equipment, with 29 percent preventing access to what they consider to be inappropriate Internet sites.
Honolulu attorney Shannon Lau, of Damon Key Leong Kupchak Hastert, helps companies draft employee handbooks and advises her clients to include sections on Internet and e-mail use.
"We always advise them to let their employees know in advance when they're going to begin monitoring their e-mails and that (monitoring) should be applied equally and randomly," Lau said.
Formally writing and distributing policies helps maintain productivity and protect the company from any possible lawsuits claiming invasion of privacy.
Costs of surfing
Personal e-mail and recreational Web surfing cost companies about $3 million a year per 1,000 employees in lost productivity, according to the Labor Department. In a study released last year by Internet job consultants Vault.com, 90 percent of workers admitted to surfing Web sites unrelated to their jobs, while 54 percent of employers said they've caught workers doing it. Only 10 percent of workers said they don't receive personal e-mail during the day.
Hostile workplace lawsuits also can prove costly for companies. Energy giant Chevron paid a $2.2 million settlement in 1999 to employees who sued, claiming unmonitored, sexually harassing e-mails created a threatening environment.
About 60 percent of workers surveyed nationwide said they had received sexually explicit or otherwise inappropriate e-mail at work and about 14 percent admitted to sending such messages.
In light of all this, employers have come to learn that establishing an explicit e-mail and Internet use policy and enforcing it with a monitoring system can go a long way in convincing judges they have taken good-faith steps to guard against harassment, while also providing documentation in the event an employee needs to be fired. Companies also protect themselves from lawsuits if an employee downloads copyrighted material.
"People gain direction from the Mainland about what may occur in your state," Portnoy said. "As technology makes it easier to communicate and people spend more time in the office, the law will have more opportunities to resolve issues of employee privacy versus employer rights to control the work environment."
Most workers' rights currently stem from standard federal labor relations protections that allow workers to organize and discuss legitimate workplace issues such as union formation. But the National Labor Relations Board doesn't yet have strict guidelines for what qualifies as protected workplace communication, so opinions differ on whether or not e-mail qualifies.
A Gannett News Service report was included in this story.
• On the Web:
For more information on e-mail and Internet use at work or to view sample usage policies: www.epolicyinstitute.com
