Guard Against Damaging E-Mail Messages

As e-mail messages become part of the standard evidence submitted in high-profile corporate litigation cases, companies are concerned about how to protect themselves without violating federal laws.

Keep in mind: Once a communication is made, it’s hard to take back. Even deleting an e-mail message doesn’t remove it completely from a computer’s hard drive. So your best defense is an offense. Set up a company wide policy on e-mail use and monitor messages.

But monitoring employee e-mail brings up another issue: Which e-mails are private and not subject to employer review? The Electronic Communications Privacy Act outlaws “unauthorized searches” of e-mails in which the employee has a “reasonable expectation” of privacy.

Protect your company by having employees acknowledge they have read your policy of acceptable e-mail use and know messages are monitored. Make sure your policy is included in your employee handbook.

Consult your attorney before initiating a policy. Among the points you might want to consider:

• E-mail is for work-related business only.
• The company may monitor the system.
• Downloading or forwarding offensive materials will result in discipline or dismissal.
• No one may e-mail corporate data without official approval.
• The company owns the e-mail system and employees should not expect privacy.

It’s a good idea to limit your e-mail reviews to times when you have a legitimate cause, for example, when there is reason to suspect an employee may be trading inappropriate jokes or pictures, or discussing matters that are potentially damaging to the company.

Management needs to beware of making off-the-cuff remarks and inappropriate criticisms in electronic communications.

If your company is already at risk for commercial, employment, antitrust, or other types of litigation where e-mail may become evidence, you should evaluate what electronic statements may already exist in your system.