Stay on Guard to Stop Harmful Messages

E-mail has revolutionized workplace communication, but there are serious liability issues that require companies to be vigilant in designing and enforcing e-mail policies.

E-Mail Finds Its Way Into Court     E-mail implicates banks. The internal e-mail messages of bank executives were extensively quoted in a report by a court-appointed examiner probing the collapse of Enron.     The banks "aided and abetted" Enron executives in manipulating their financial statements, the report said.     Examples: In one e-mail, an executive from the Canadian Imperial Bank of Commerce called returns on Enron investments "outrageous." A Citigroup official sent a message about "a funky deal." And when one J. P. Morgan executive expressed shock at the money involved, a colleague reponded: "Shut up and delete this e-mail."       Who pays for retrieval in lawsuits? A decision in a gender discrimination case could help clarify who should foot the bill for retrieving e-mail messages requested in court.     The case was filed against UBS Warburg by a former equities trader. She is seeking e-mailed messages to prove the firm failed to promote her and then terminated her because she's a woman.     The judge ruled that UBS must pay 75 percent of the estimated $273,000 cost of restoring the documents from backup tapes. The plaintiff must pay the other 25 percent. UBS must also pay the entire cost of "producing" the e-mail messages, which includes hiring a lawyer to review the restored documents for privileged information before releasing them. (Zubilake v. UBS Warburg)      Message helps Chinese plaintiff. E-mail caution is warranted when doing business internationally. In Beijing's first sexual harassment employment lawsuit in 2003, one of the pieces of evidence was an e-mail message showing that the male supervisor interfered with the former employee's search for work. The message also states that he asked police to arrest her after she reported the harassment.

Clear policies and training are critical because your organization could be sued under the legal principle of vicarious liability, which holds an employer responsible for damage caused by its employees.

Recent court cases illustrate how e-mail messages that organizations thought were long forgotten have come back to cause embarrassment and provide solid evidence of wrongdoing.

As the U.S District Court in New York noted: "An e-mail contains the precise words used by the writer. Because of that, it is a particularly powerful form of proof at trial."

Despite the danger, a survey of 1,100 companies found that many businesses don't clearly explain their e-mail policies to employees.

The survey was conducted by the ePolicy Institute, the American Management Association and software maker Clearswift.

It found that 75 percent of the companies have written e-mail policies, but fewer than half of those train their employees on the procedures.

Twenty-two percent of the firms have fired an employee over improper e-mail use, yet many of the discharged employees said they had no idea they were violating company policy.

In the event your company is sued, a well-documented e-mail policy and a history of educating employees can be used as a defense.

To protect your organization, here are some steps to take: 

 Monitor incoming, outgoing and internal messages. E-mail between employees or individuals outside the company can contain sexually oriented, racist or otherwise offensive material, opening the way to a lawsuit. For instance, you could be sued for allowing a hostile work environment if an employee sends colleagues an e-mail containing an off-color joke or pornographic image.
While 52 percent of companies surveyed use software to monitor incoming e-mail, only 19 percent monitor internal correspondence between employees. Ninety percent of companies report that at least some e-mail is personal.

There are other legal risks that can be uncovered with monitoring software, including employees sending company trade secrets to competitors using e-mail.

 Archive messages. Company policies need to address the storage and retrieval of e-mail messages. Most organizations would be unable to retrieve specific deleted messages if they were requested by a regulatory agency or a court. And those requests are increasing every day.

The Securities and Exchange Commission has levied multi-million dollar fines against brokerage firms for improperly archiving e-mail in violation of various recordkeeping laws. And e-mail retention laws have been tightened in other industries with the passage of laws such as the Sarbanes-Oxley Act and the Health Insurance Portability and Accountability Act (HIPAA).

Despite the growing requirements, only 34 percent of employers surveyed currently have written e-mail retention and deletion policies in place, the same figure reported in a similar survey done in 2001.

 Ensure your policies coordinate. A strict privacy policy means little if there is no written e-mail policy or one that is vague.

Unencrypted e-mail is the worst possible way to communicate a message that is confidential or private. While it may go to the intended party, the sender has no control over whether that message is forwarded on to one or several other people. Encryption can provide some protection, but the most private and confidential information shouldn’t be sent via e-mail.

 Prevent viruses. Beyond the potential liability for lawsuits, e-mail training is important to help prevent employees from opening or distributing e-mail messages that contain viruses, worms or other attachments and code that can disrupt your operations. Seventy-six percent of surveyed companies lost some time due to e-mail system problems. Some businesses lost as many as two business days.

On the horizon? Many employees report receiving racist, sexist, pornographic, or other inappropriate e-mail at work. Legal experts have warned that companies without e-mail filters could find themselves involved in litigation stemming from the deluge of provocative spam landing in corporate inboxes. Employees could claim their employers failed to protect them from offensive content.

The bottom line: Although many people think of e-mail as a casual form of communication, messages are similar to corporate documents that can be used as evidence in litigation. Even after being deleted, most messages can be retrieved. Companies must monitor to ensure that employees are not sending offensive messages or disclosing company secrets through e-mail.

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