Originally created 03/31/97

E-mail can be used against employers, employees



Ever wonder what happens to those e-mail messages you dash off at the office?

If you think they're gone once you hit the "delete" key, you're very, very wrong.

Often, they go deep into the memory of the company compu-ter, a place where there's no shredder and no secret password.

In the high-tech workplace, "delete" does not mean "delete."

If you're an employee, e-mail may be used against you, especially if your employer has your consent to read it, as many do.

And if you're an employer, e-mail can be subpoenaed by a plaintiff's lawyer and dragged out of the computer in the event of a lawsuit. Such as:

A fired employee who sued for age discrimination got a quick settlement after his attorney found: "I hope we can get rid of the old [filtered word] soon" on deleted company e-mail.

An employee was fired after deleted e-mail contained threats to "Kill the backstabbing (sales managers)" and referred to a future holiday party as "the Jim Jones Kool Aid affair."

A laid-off woman who sued her West Coast employer after losing her job to a "tough economy" got $250,000 after computer tapes revealed, "Get the - - out of here as soon as you can. I don't care what it takes."

Allan H. Weitzman, a labor lawyer in Boca Raton, Fla., said, "E-mail is the next employment-law nightmare."

It's a growing nightmare as more companies add e-mail systems that generate billions of messages a year, Mr. Weitzman recently told a group of 100 employers at a labor-law seminar.

E-mail can be bad news for both sides. "Never, ever say anything on e-mail you wouldn't want your boss to read because you never know when they're reading it," said Lewis Maltby, director of the American Civil Liberty Union's Workplace Rights project.

Few laws specifically govern the use of e-mail in an employment setting. The Electronic Communications Privacy Act of 1986 predates e-mail and pertains mostly to telephone conversations.

Lawyers are turning to this and other laws on privacy and consent, none of which apply precisely to the messages that flash on computer screens.

Mr. Weitzman strongly urged employers to draft an e-mail policy to protect themselves against lawsuits. He also emphasized that they should review other policies touching on the electronic work force, including telephone monitoring, telecommuting and Internet use.

"The decision to put a computer on an employee's desk can cost a lot more than the computer," Mr. Weitzman said. "E-mail is informal, and it has an ephemeral quality that seems to encourage candor and offhand comments. Things you see in e-mail, you'd never see in written memos."

That's why off-color language, less-than-flattering descriptions of co-workers and other misplaced messages seem to be the stuff of e-mail. Few people bother correcting their spelling, never mind self-censoring inappropriate language. "Employees tend to think e-mail is private," Mr. Weitzman said, because it's protected by their password. And in the eyes of the law, they may be right.

Many states recognize the individual's common-law right to privacy, including prohibitions against the intrusion into a personal life, placing a person in a false light and public disclosure of private facts, Mr. Weitzman said.

The ACLU's Mr. Maltby says there's an obvious difference between business-related and private e-mail, and employers should act accordingly.

"Common-law privacy is whatever shocks the conscience of the judge and jury," he said. "I sent my wife a very mushy e-mail on our last anniversary. That's of no concern to my employers. It's none of (an employer's) business, and it could get you in trouble."

Meanwhile, there are several arguments lawyers are using to protect employers against privacy violations charges.

The Electronic Communications Privacy Act protects stored communications from access and disclosure. The exception is live monitoring.

"To what extent the law applies when the employer accesses e-mail in the employer's computer, we just don't know," Weitzman said.

Another argument says that if one of the parties consents to being monitored, it's legal. While cases haven't been decided on the issue, lawyers believe this consent can take the form of a signed acknowledgement of e-mail monitoring, or an on-screen reminder that mail is being monitored.

Other arguments for e-mail monitoring attempt to use the "system provider" exemption, which has enabled phone-system providers such as Southern Bell to intercept phone conversations. Since employers are providing the computer "system," they're entitled to monitor the messages that are sent on it, Weitzman said.

Under the 1986 privacy act, legal issues surrounding telephone monitoring are a little clearer. In the case of a telephone, a company can monitor conversations for business purposes if the company informs employees they're being monitored.

There's one big exception, Weitzman noted: personal phone calls. Employees should be encouraged to use a clearly labeled, unmonitored line to make such calls in the workplace. And if the employer thinks he's hearing personal information, he should hang up.

Privacy cases involving e-mail eventually will start making their way through the legal pipeline in Florida. What most employers want to avoid, Weitzman said, is letting a case get past a judge and into the hands of a jury, which is more likely to be sympathetic to a worker who feels he or she was wronged.

If an employee sues on grounds of invasion of privacy, Weitzman said, a judge would consider whether the worker knew about the monitoring in judging whether there was a privacy violation.

The most effective piece of evidence would be a document signed by the employee that clearly states that he knows his e-mail is being monitored, Weitzman said. The on-screen notice of monitoring, which comes up every time an employee starts the computer, would also be a good piece of proof, he said.

"Publish an e-mail policy that tells everyone what their rights are," Mr. Weitzman said. "While there's not any law yet, all commentators agree: If you have a policy or use on-screen reminders or signed waivers that put employees on notice, it's the easiest and least costly way to render everyone's expectations of privacy unreasonable."

The ACLU's Mr. Maltby agrees that there are times an employer must look into stored e-mail communications for business purposes, such as accessing information on deadline when a key person is unavailable. He advises using the guidelines of the Electronic Communications Privacy Act - monitor e-mail for business purposes only, and stay out of private communications.

Mr. Weitzman said it's also in the best interests of workplace fairness for employers to state their e-mail privacy policies clearly. "No more secrets about `Delete' not being `Delete,"' he said. "The myth is over. Employees ought to know."