May 05, 2017

You Can't Shred Email

By: Allison Mann

The use of email and the internet has revolutionized business. It is a highly effective communication tool, that allows people to communicate thoughts and ideas almost instantly, to individuals anywhere in the world. Many businesses would not be operational without the use of email. That being said, your employee’s email accounts can be a potential liability—including causing a negative impact on business reputation, employee productivity, and the bottom line.

The Issue:

People do not always put a lot of thought into what is being put in writing, partly due to the informality and ease of email communication. This sometimes-thoughtless exchange of messages can get a business into some pretty hot water. It is not uncommon to see an email labeled “Exhibit A” in a lawsuit against a company. So-called “bad” emails can come in many forms, and they range from discriminatory, suggestive, or offensive emails, to emails that contain work product or confidential information.

The more commonly-seen risk is offensive and discriminatory emails. Numerous examples are available, but the case of Williamson v. Citibank N.A., 1999 U.S. Dist. LEXIS 23047 exemplifies the issue nicely. Here, a Citibank employee sent a racially, sexually, and ethnically offensive email to ten other employees. The plaintiff in this case, another Citibank employee, did not actually receive the email, but did see it eventually. She asserted that the content of the email gave rise to a hostile work environment and sued the company. The court disagreed. It found that this one email was not enough to create a hostile work environment, especially when she was not sent the email directly. However, the court also commended Citibank’s handling of the situation: it promptly and efficiently began an investigation, disciplined the responsible party, and reiterated its nondiscrimination policy to all employees. Citibank’s response contributed to this finding of nondiscrimination.

The Takeaway:

Employers should make every effort to protect themselves from these types of claims. A good first step is to draft a plan or policy addressing email and internet usage in general. The following issues should be addressed by any plan or policy:

1. Acceptable email use. Email use during business hours should be limited to work related communication. Employees shouldn’t be conducting personal business, forwarding “chain” emails, etc. It is helpful to give specific examples of inappropriate use, and examples of appropriate use.

2. Company property. Make it clear that any computers, tablets, phones or other devices supplied by the company remain company property. Inform employees that it is company policy that there is no right to privacy on company owned property.

3. Work v. Personal Accounts. Make sure employees are not sending work emails from personal email accounts and vice versa. Mixing business accounts with personal email poses a security risk, and makes personal messages more easily discoverable during litigation.

4. Monitoring. Many companies reserve the rights to monitor an employee’s internet and email usage on company property and on business time. It is good practice to put those monitoring efforts in writing, and make employees aware.

5. Consequences. Inform all employees that there are penalties for violating the appropriate use policy. Moreover, follow through with corrective action when warranted.

6. Draft a response plan. Even the most carefully thought out and diligently implemented email policy can be violated. A human resource manager should always have a response plan in this event. A prime example of a response plan is found in the Williamson case discussed above, where the court found the defendant’s investigation and response was sufficient under the circumstances.

7. Training. Once an employer has a plan or policy in place, employee education becomes is key. All employees must be made aware of and understand what is acceptable under the new policy. Regular reminders and compliance training also helps to reinforce the policy.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at amann@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the May, 2017Southwest Area Human Resource Association newsletter.