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Well-crafted, distributed and acknowledged e-mail policies can prevent a great deal of abuse and litigation of this vital communications technology. Good policies regarding employee e-mail usage can avoid claims of racial and sexual harassment, defamation, and invasion of privacy, not to mention suits brought by employees terminated for sending inappropriate e-mails. Trade secrets can also be better protected by a company’s use of such policies. Successful e-mail usage policies are grounded in reality. Policies should be in writing, enforceable, equitable and nonbiased, and should: � inform employees that personal usage of an employer’s e-mail is permitted, but should be kept to a minimum; � warn employees that they have no right of privacy or confidentiality; � inform employees that the employer reserves the right to monitor the e-mail system; � indicate that employees should treat messages the same as other written business communications — with professionalism, care and confidentiality; � state that usage and access to the company’s computers, e-mail system and distribution lists should be restricted to company employees; and � make perfectly clear that explicit statements that are harassing, discriminatory, defamatory, fraudulent, obscene, indecent, embarrassing or intimidating will not be tolerated, and may lead to discipline up to and including termination. Distribution and acknowledgement of the policy are essential to its success. All employees should be required to sign and return a form acknowledging and agreeing to the policy. Distribution methods include incorporation of the policy in employee handbooks, policy and procedure manuals, posters and training programs. Highly recommended was the pop-up welcome screen that appears every time the e-mail system is accessed, advising the employee of usage policies. Where do courts stand on e-mail and employees? Some potential barriers exist to erecting an e-mail policy. Issues like the employee’s right to privacy, statutes protecting electronic communications — the Electronic Communications Privacy Act (ECPA) — the National Labor Relations Act and the First Amendment have all been argued in various courts. As to the reasonable expectation of privacy argument, whether in reference to state privacy issues or First Amendment matters, courts have generally been unsympathetic, even where employers lacked e-mail policies or guaranteed the “confidentiality” of such communications. However, other courts, like the 7th U.S. Circuit Court of Appeals, have indicated that a reasonable expectation of privacy might develop where an employer fails to reserve the right to monitor e-mail communications. Given the undeveloped nature of the ECPA, the employer’s best bet when monitoring employee e-mail is a thorough e-mail usage policy with a signed employee acknowledgement form. Employers run into problems with the NLRA when employees use the employer’s e-mail system for union organizing activities. Section 8 of the NLRA prohibits unfair restraint of the exercise of union rights. This is the reason a blanket ban on non-business-related usages is not the best policy. Regardless of these early barriers, the creation and maintenance of good e-mail policies is a must in today’s maze of technology. While laws and litigation on e-communications may be in their formative stages, employers are best advised to plan in advance and seek legal counsel to create policies that reduce the potential for litigation around e-mail communications.

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