How Good is Your Electronic Communications Policy?

Robert F. Conte, Esq.

Innovations in technology continue to have an impact on the workplace. While new technologies allow employer's to increase the efficiency and productivity of their employees, it also creates a distraction and diversion for the employees.

An employees' use of communication systems like e-mail and instant messaging, along with a myriad of other electronic devices such as handheld computers and camera cell phones can lead to a variety of problems and risks for the employer. Those risks, the unauthorized disclosure of a company's proprietary and confidential information, exposure of the company's computer network to viruses and security breaches and claims of copyright infringement, harassment and defamation are increased due to the recent surge in the use of web logs (Blogs), both inside and outside of the workplace.

At this time Courts appear to favor the rights of private employers respecting their right to monitor an employee's use of computer networks, especially where the employers have policies in place reserving that right. A well drafted policy implemented by the employer and reviewed with all employees can provide significant protection for the employer. Under federal and most state laws, employer monitoring will be viewed as lawful where the employee consents to being monitored. By developing a policy and sending it to your employees, the employer is creating an element of implied consent.

So, how does your Electronic Communication Policy (ECP) stack up? Does it address internet activities like e-mailing and downloading? Well, that may not be enough. To have an effective policy the ECP should also cover instant messaging. What is that you ask? It is e-mail that allows its users to have real time conversations. It is also faster than e-mail thereby creating another potential for employer liability.

Is instant messaging happening in your organization? Results of a recent study found that more than 50% of employees are using instant messaging or other similar software to communicate with co-workers, business associates, friends and relatives. Another study estimated 7 billion instant messages were sent each day in 2004. Surprised? Most employers are. So how do you write an effective policy? Here are some pointers:

• Write your ECP broadly enough to include emerging technologies and update the policy regularly (as needed).
• Decide the level of network security you will apply including access controls like passwords and encryption.
• How often will/does your organization/company monitor employee communications. Include this in the policy.

When drafting the ECP is it recommended that the organization involve as many departments as possible (i.e., IT, legal, records management, compliance and human resources).

Records retention is another consideration and an important part of the policy. If your company allows instant messaging, is there a way the messages can be archived prior to deletion? Being able to do so will allow you to create a record later if a matter ends up in Court.

Once the ECP is in place, make sure the employee's know it is there. A simple notice telling employees about the new or revised policy may satisfy the knowledge requirement. Sending such notice via e-mail, according to a recent Court decision, may not be enough because there is no way to know whether the employee actually read the e-mail or policy. A better practice, said the Court, is to require employees to acknowledge they had read the message, either by clicking on a link or signing a document to that effect (Campbell v. General Dynamics Government Systems Corp.) . In my opinion, the most prudent course of action is for the employer to obtain a signed statement from its employees indicting that they have received and reviewed the policy.

Any policy an organization develops is only as good as its enforcement. If an employer does not enforce the policy and do it consistently then why have one at all?

Reference Sources:

"Like E-Mail Only Faster", Jason Krause, ABA Journal, May 2005. 

"Emerging Technology in the Workplace", Matthew E. Swaya and Stacy R. Eisenstein, 20 Lab. Law 1, 2005.

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