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Employers may be liable for office e-mail content

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Personal computers and their various applications have changed the face of American business. Today, almost all businesses use computers to process and distribute corporate information. This communication revolution has been driven largely by e-mail and Internet-based technologies.

However, if your business does not have an electronic communications policy, these technologies may do your business more harm than good.

A business without an electronic communications policy is leaving itself exposed to a wide variety of harm. Employee e-mail often contains candid and inflammatory material for which an employer may be liable.

Chevron Corporation recently paid $2.2 million to settle a lawsuit after plaintiffs' attorneys found e-mail evidence of sexual harassment on Chevron's computer system.

The Justice Department's use of Microsoft's e-mail as evidence of anticompetitive behavior shows that e-mail can be especially damaging evidence which cannot be easily explained away. Just ask Bill Gates.

Inappropriate employee e-mail is not the only thing an employer needs to guard against. For instance, employees who download and distribute pornography or sexist jokes to fellow employees may create a sexually hostile work environment.

Many companies have been sued because naive employees downloaded copyrighted software, owned by a third party, and then incorporated that software into company products or used it in the company's internal operations. In some instances, posting or e-mailing confidential information that relates to a new product or service can prevent a business from applying for a patent or treating the information as a trade secret.

An electronic communication policy is also necessary to protect computer systems from penetration by a competitor, as the Department of Energy has recently discovered.

It is probably not realistic to adopt a policy prohibiting all personal use of company computers.

That is unless you desire to crack down on employees who check the price of their Internet stock holdings while on their lunch break.

However, employees should be told that company computer systems and all messages produced or carried by them are company property, subject to reasonable inspection.

Having so warned its employees, a company can monitor e-mail or computer use to ensure compliance with company policies without violating the law or employee privacy rights.

The Electronic Communications Privacy Act of 1986 puts limits on when companies can intercept electronic messages such as phone calls. But no federal law prohibits employer monitoring of e-mail or Internet communications. Likewise, Missouri law does not prohibit this practice.

However, a growing number of states, such as Florida and Maryland, have passed laws prohibiting an employer from monitoring employee e-mail absent consent.

Court challenges to employer monitoring based on the theory that it violated employee privacy rights have been uniformly unsuccessful in cases where the company told its employees that it was monitoring their computer use.

A 1998 American Management Association survey found that 20 percent of companies are monitoring or reviewing employee e-mail and computer files. Employer monitoring is essential to enforcing an electronic communication policy and avoiding the hazards inherent in unrestricted and unsupervised employee computer use.

An effective electronic communication policy should address a number of other areas besides employer monitoring, such as acceptable uses, unacceptable content, intellectual property, security and encryption, and e-mail guidelines, such as when it is appropriate to e-mail the CEO.

Despite the risks inherent in unregulated employee computer use, less than 20 percent of U.S. businesses have formal policies regulating employee use of company computer systems.

A carefully considered and well-drafted electronic communication policy will benefit your business by educating your employees in the proper use of company computer systems, preventing incidents for which you may be liable and demonstrating a mitigating good faith effort to take appropriate action in the event that your business is sued.

(Mark Fletcher is an associate attorney with the Springfield law firm of Miller & Sanford. Information and opinions expressed in the "Letter of the Law" column should not be construed as legal advice. For counseling on specific legal situations, please consult an attorney.)

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