Employee Email and Internet Use Policies: Neither Big Brother Nor Big Bother
February 8, 2000
More and more frequently, employers of all sizes are instituting and enforcing e-mail and Internet use policies. These policies typically restrict the content of personal e-mail use as well as personal Internet access at the office. Some are in force only during an employee's on-duty hours; others impose blanket restrictions. Enforcement is commonly achieved by software that either monitors e-mail and Internet use, scans for and reports profanities and banned content, or blocks access to prohibited web sites such as those which market pornography or even on-line shopping services.
Employers face a dilemma as e-mail and Internet use grows in their employees' everyday affairs. To promote speed, efficiency and knowledge maximization and management in daily operations, companies have a strong business interest in encouraging e-mail and Internet use. As employees spend more hours at work where Internet connections and software exceed capabilities of most home PCs, they are more frequently using company Internet connections on company time for personal use. While limited personal use is harmless and lifts employee morale, excessive or inappropriate personal use can impair productivity, overburden a company's servers or, worse still, compromise proprietary data security or subject employers to legal liability.
E-mail and Internet use policies thus are commonly aimed at avoiding a hostile work environment, disclosure of trade secrets and copyright infringement. Company rules, for example, may prohibit sending, accessing, and downloading language, content or images that are offensive or harassing in respect to race, sex, religion and other protected classifications within Title VII of the United States Code. Employees more readily and willingly accept these types of restrictions when employers institute them in connection with existing anti-discrimination and harassment policies.
Policies incorporating confidentiality and loyalty obligations also are an effective vehicle for instituting more specific e-mail and Internet restrictions. Well-timed warnings and restrictions against use of company e-mail or Internet connections to investigate or apply for employment with a competitor, and against unauthorized downloading of software or pirating copyrighted publications or digital music, for example, may avert costly exposure to and legal battles with authors, publishers, software vendors and consultants, competitors, former employees and, potentially, their new employers. Where publicly traded companies are concerned, strictly enforced restrictions against and software that scans for, blocks and reports e-mail directed or created outside the corporate control group divulging sensitive internal company information and developments can prevent costly and embarrassing securities laws violations.
Still, employers must consider the negative effect on morale of broad-based restriction of personal e-mail and Internet use at the workplace. Some personal e-mail and Internet use similar to permitted personal telephone use may enable employees to devote longer or more flexible hours to their jobs and enhance overall job satisfaction-both of which considerations loom large in the prevailing labor market. Personal e-mail and Internet use for such necessities as grocery shopping, child care arrangements and personal banking may bridge the gap for otherwise unmanageable work schedules. After assessing business and workforce needs-ideally with significant employee input and professional human resource consultation, an employer is ready to determine the level of appropriate restrictions. Once that determination is made, the employer should establish specific written policies notifying and guiding employees regarding authorized and unauthorized e-mail and Internet use.
Weighed against the legitimate business need to encourage yet regulate e-mail and Internet use is an employee's right to privacy. While an abundance of court decisions decline to recognize an employee's expectation of privacy in most workplace contexts, excessive and oppressive levels of intrusiveness will surely yield decisions in favor of victimized employees. Employers are wise affirmatively to limit employees' expectations of privacy in their personal e-mail and Internet use and reserve the right to make adverse employment decisions based on infractions. This should be done by issuing specific policies to put employees on notice of restrictions, consequences of violations and the employer's right to make policy changes with advance warning. Failing so to develop and institute policies could prove to be as problematic to employers as unregulated e-mail and Internet use in the workplace during the continuing evolution of State and federal law governing this important subject.
Copyright © 2000 Levenfeld Pearlstein. This article contains general commentary on legal matters. It should not be relied upon as a substitute for legal advice as to any particular situation. If you have questions concerning this topic, please e-mail Laura Friedel (email@example.com) who concentrates in commercial litigation in a wide variety of areas including intellectual property law, technology law, employment law, healthcare law and insurance law at the Chicago firm of Levenfeld Pearlstein .
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