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With the exponential growth of Internet and e-mail use, companies have increasingly found themselves subject to legal challenges and liability based upon the unprofessional or illegal activities of employees. According to employment law attorney Susan G. Feibus, human resource professionals are well advised to adopt written policies that will clarify employees’ rights and obligations, minimize the likelihood of lawsuits and provide the company with solid legal defenses. While there may be industry-specific guidelines, some issues surrounding the use of e-mail and the Internet are so prevalent and fraught with potential legal repercussions that all companies should address them, she said. EXPERT ANSWERS FAQ’S Feibus has compiled a “Top 10″ list intended to answer questions that typically arise when companies that provide e-mail and Internet access to their employees formulate written policies governing their use. 1. Employers can limit employees’ e-mail and Internet usage. Employers can mandate that their employees use the e-mail system and the Internet solely for business purposes. Alternatively, employees may be permitted to use either e-mail or the Internet, or both, for personal matters anytime or at specified times, such as during their lunch hour. Often, permitting limited personal use is a happy medium: it obviates the necessity for constant monitoring of employees yet puts them on notice that excessive personal use will not be tolerated. 2. Employees have no right to privacy in electronic information systems. Employees should be expressly notified that they have no right to expect privacy with respect to their e-mail or Internet use, whether for business or non-business purposes. This notification enables employers to monitor the content of e-mails and screen accessed Web sites, should employers so desire, and to ensure that no illegal or prohibited activity is being conducted via computer. Moreover, making employee’s lack of privacy clear avoids any disputes that may result if employers promise confidentiality and later are required to disclose e-mails, for example, in a legal dispute. 3. Because e-mail is subject to production in litigation, e-mail should be no different than regular mail. As with other non-privileged documents, e-mails must be produced if requested during litigation. E-mail also may be subpoenaed by parties to lawsuits to which the employer is not named. Disclosure of e-mail may lead not only to embarrassment but also to litigation depending upon the content of the e-mail disclosed. E-mail communications more closely resemble conversations than traditional business correspondence, and often contain colloquial language. Additionally, e-mails often are hastily written and sent. Because the language and phrasing of the message or the treatment of e-mails often is similar to verbal communications, e-mails often inadvertently contain potentially damaging information. In the context of litigation, these “conversational” e-mail messages will be used to attempt to show the true intent or motive of the writer. Employees therefore should be advised that e-mails are to be treated no differently than written, professional communications, regardless of the intended recipient. 4. E-mail can be deleted systematically. Sound retention policies that systematically purge the network of old messages go far to avoid the problems associated with e-mail production. To be effective, retention policies should require automatic destruction of e-mails at regularly scheduled intervals. Systematic retention policies not only rid the system of potentially damaging, discoverable documents, but also enable companies to defend themselves against allegations that they deliberately destroyed evidence. Companies, however, must suspend the purging of e-mails once there is a potential or pending lawsuit, as the destruction of e-mail evidence is subject to court sanctions. Once in place, retention policies must be uniformly enforced. 5. Caveat: E-mails never die and may not even fade away. Remnants of e-mails exist on the computer system or back-up files even after the “delete” key is pressed. While it is expensive for a company to have experts recreate the original messages, this can and has been done. Moreover, once recreated, the e-mails must be reviewed by counsel to determine whether any are privileged or otherwise not subject to disclosure, adding additional expense. 6. E-mail and Internet use can provide the basis for a harassment or discrimination claim. Employers can be liable for sexual, racial and other employment discrimination or harassment if the contents or images of e-mails, accessed Web sites or screen-savers are offensive enough to create a hostile work environment. This is more common in claims of racial, ethnic or sexual harassment in which the e-mails or other images themselves may provide sufficient evidence of a hostile work environment or a pattern of harassment and discrimination to enable the plaintiff to prevail. In allegations of discrimination based upon gender, race, age, ethnicity or religion, e-mails may provide evidence of unlawful motivation for adverse employment actions. Because e-mails and other computer-related activities may be presented to prove the liability of employers, all e-mail and Internet policies should incorporate the company’s written policies regarding harassment and discrimination. 7. E-mail can expose a company to antitrust liability. As anyone who followed the recent Microsoft litigation knows, e-mails can be damning. A large part of the testimony in that trial revolved around Microsoft’s e-mails which were used to attempt to establish Microsoft’s anti-competitive intentions. Language like “dominate the market” or “kill our competitors,” which would be extremely damaging in antitrust litigation likely would not be used in formal business correspondence; such language however has found its way into e-mail. Training employees to understand the potential harm from, and avoid the use of, seemingly anti-competitive language is therefore essential. 8. E-mail and Internet usage can give rise to copyright infringement and defamation claims. Employers can be liable for copyright infringement when employees download, misuse or forward applications or other data without permission of the copyright owner. Similarly, if employees transmit or tamper with software for which companies have entered into a licensing agreement, employers may be exposed to litigation for violating those agreements. For these reasons, companies should prohibit the downloading of Internet programs without prior approval and notify employees that severe disciplinary action will be imposed for any activities that violate the employers’ licensing agreements. Defamation is another claim that can be alleged and possibly proven based upon e-mails and Internet use. One key aspect required to prove liability for defamation is that the false and injurious material was “published.” Publication may be made in many ways, including through e-mail communications and statements made in Internet chatrooms. Moreover, because it is easy to deliberately or inadvertently forward e-mails to others, the possibility of publication is greatly increased. Advising employees about the proper uses of e-mail and the Internet should decrease an employer’s likelihood of becoming the target of a defamation lawsuit. 9. Employers can monitor e-mail and Internet usage. Because of the many ways in which companies may be held legally liable due to e-mail and Internet use, employers may wish to consider monitoring and screening employees’ e-mails and Internet activities. Computer programs are available that monitor e-mails and Web sites for certain offensive words or images; there also are applications that deny access to certain Web sites. Further, companies may review incoming and outgoing e-mails for language and content. While such measures are fairly extreme, they are being implemented by increasing numbers of companies. The rationale underlying the installation of such programs is to avoid or minimize legal liability by either preventing or quickly responding to illegal or prohibited activities. Employees, however, should be expressly advised of such monitoring to avoid claims that their privacy or free speech rights are being violated. 10. The best defense is a good offense. A written policy is imperative. Companies can best protect themselves against liability by having written policies regarding use of the information systems that all employees must read and sign on a periodic basis. These policies should contain explicit guidelines for employees to follow when using the e-mail and Internet systems, as well as any other relevant information. The policies also should include the potential hazards, both to the employers and the employees, of misusing computer access, including disciplinary actions that may be taken. Put it in writing. In addition, much of the information provided in this checklist may be incorporated into a written policy to emphasize why employees are required to utilize their computers in the prescribed fashion. Because of the inherent legal implications of Internet and e-mail use and misuse, as well as the ease with which confidential information can be forwarded to third parties, human resource professionals should ensure that employees are informed of, and frequently reminded about, the policies and guidelines surrounding their computer use. To ensure that these policies provide the legal protection intended Feibus recommends consulting legal counsel prior to the implementation of any written policy. � 2000, CCH INCORPORATED. All Rights Reserved.

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