July 26, 2006 4:00 AM PDT
Perspective: Why employers are cracking down on e-mailSee all Perspectives
I recently wrote about how employers face considerable challenges figuring out to handle employees' electronic communications, such as blogging and instant messaging.
According to the 2006 Workplace E-Mail, Instant Messaging & Blog Survey by the American Management Association and the ePolicy Institute, 26 percent of employers have fired employees for misuse of e-mail. Another 2 percent have terminated workers for inappropriate instant messaging chat; while yet a further 2 percent have dismissed employees for offensive blogging content, including content posted on employees' personal home computers.
Why are employers fighting back so hard against their own employees? The AMA and the ePolicy Institute believe that this backlash follows a wave of lawsuits caused by employee e-mails. The survey points out that 24 percent of companies have been served with subpoenas for their employees' e-mails. About 15 percent of companies have gone to court to battle lawsuits triggered by e-mails from their employees. The failure by employees to retain certain e-mails, as required, has led to significant financial sanctions in some cases.
Why are employees causing so much trouble for their employers? Unfortunately, there's a downside to the same benefit offered by the ease and speed of electronic communications. It is so easy to interact with others quickly by way of e-mail, instant messaging and blogging, that some employees treat these communications like verbal chatting. They easily forget that the electronic communications are saved and can be distributed to others. What a given employee might want to say verbally one-on-one to another person in private very well might not be the type of communication that should be preserved as an electronic communication.
Also, some employees cling to the mistaken belief that the First Amendment of the U.S. Constitution protects all forms of their speech, including their electronic speech. Not so. The First Amendment does not allow employees to enter into communications, electronic or otherwise, that defame their employers or improperly harm other employees. It also doesn't protect communications that compromise the trade secrets and intellectual property of their employers, as just a few examples of non-protected speech.
Employees must understand that the law does not necessarily consider their workplace electronic communications as private and does not embrace communications that are adverse to the interests of their employers. Many employees are employed "at will," which means that they can be terminated without any reason by their employers. Even employees who have contracts that say they will not be terminated but for "good cause," may provide the good cause needed by employers if they engage in offensive electronic communications.
On top of all of this, many employers have employees sign company business equipment policies that make plain that workers have no privacy interests in their workplace communications and that provide the do's and don'ts of communications. However, while 76 percent of employers have policies that address workplace e-mail usage and content, only 2 percent of employers have educated their employees with respect to blogging.
Moreover, even though 35 percent of employees use instant messaging at work, only 31 percent of employers have IM policies in place. As technology develops and further means of communicating come to the fore, employers need to be proactive in training their employees.
While 34 percent of surveyed companies have in place written e-mail retention/deletion policies, fewer than 34 percent of employees understand the difference between e-mails that must be saved and insignificant e-mails that should be purged. This can come back to bite employers, especially regarding destroyed e-mails that should have been saved--a company could be charged with destroying evidence relating to matters at issue in legal proceedings--which could lead to substantial financial sanctions.
So, yes, it is understandable that under certain circumstances employers may have no recourse but to terminate employees who are causing trouble with their electronic communications, especially after having been warned. But employers should be sure to be ahead of the curve in teaching their employees about how to properly use information technology.
is a partner in the San Francisco office of . His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to email@example.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.