Big boss is reading your e-mail

Each day it becomes more apparent that e-mail and instant messages are not private. Employers are worried about liability and lawsuits so they’re monitoring employee e-mail.

Their fears are not unfounded. The 2006 Workplace E-mail, Instant Messaging & Blog Survey by the American Management Association and the ePolicy Institute found that 24 percent of responding organizations have had employee e-mail subpoenaed and 15 percent have gone to court to battle lawsuits triggered by employee e-mail.

On the other side, 26 percent of employers have terminated employees for e-mail misuse and 2 percent have let employees go for misuse of IM. Even blogs are a cause of dismissal, as 2 percent of respondents reported firing workers for offensive content — even if the blogs are not corporate-based.

As employees are encouraged to work longer and less-defined hours on company equipment, the lines between professional and personal use are becoming increasingly blurred. While organizations have gotten increasingly better about developing and communicating e-mail acceptable use policies, they are still lacking in addressing policies for IM and blogging.

The AMA found that 76 percent of the companies surveyed do have e-mail usage and content policies in place. That number drops significantly lower — to 31 percent — of employers that have IM policies in place. And only 9 percent have policies that address the use of blogs.

This lack of communications between employers and employees about expectations has set employees up for serious repercussions.

I recently discussed this changing landscape with Jeremy Gruber, legal director at the National Workrights Institute in Princeton, N.J.

What rights do employees have regarding privacy and corporate e-mail? What about using personal e-mail on a corporate computer or accessing corporate e-mail from a personal computer? Employees have virtually no privacy rights on their employer’s corporate e-mail system. There is not even a hint of a balancing test involved.

Employers can monitor e-mail on their systems with total abandon and are not required to distinguish between personal and work-related messages. Indeed an employer can monitor your e-mail messages if you are using the corporate system regardless of whether you are accessing the system from home or on the road and can even access e-mail on personal accounts if it is accessed on the employer’s server.

In fact, with the exceptions of Connecticut and Delaware, employers are not even legally required to tell their employees they are monitoring. State legislatures and Congress have completely abdicated their responsibility to regulate in this area.

What types of charges have you seen result in the dismissal of employees for using their e-mail? Employees have been dismissed for spending too much time on e-mail, sending “excessive” personal messages and for the content of their messages as well. Employees have been terminated for a single incident.

Often employer policies in this area are not very well developed and employees are not aware that they have violated any rule. And since most employees are “at will” — meaning they can be fired for any reason not protected by statute — these minor violations can be an easy excuse for an employer to get rid of an employee for reasons that aren’t easily justified.

Do you feel there is a catch-22 because employers want employees to be available 24-7 and equip them with corporate equipment/software? The traditional 9-to-5 static workplace doesn’t exist anymore. Employees are more mobile than they have ever been before. A majority of today’s workforce spends at least some time working outside the office with some regularity.

Employees are working longer hours than ever before, they are working from home, on weekends and even on vacations when they are emboldened enough to take them. Many are accessible by mobile devices at virtually any time during the day and night. The lines between home and work have been rapidly dissolving for some time.

The efficiencies and increased productivity that have resulted from this sea change have been entirely directed by employers for their benefit. While they are the driving force behind these fundamental 21st century workplace changes, their conception of workplace monitoring is rooted in 20th century ideas that have little relation to the realities of the present workplace. An employee who is working in far excess of 40 hours a week and is constantly accessible remotely should be able to e-mail their child’s pediatrician or engage in other necessary communications when they are in the office without fear of highly private content being made available to their employer.

What do you recommend that workers do regarding e-mail at work or on work equipment? Unfortunately the only way to truly protect yourself from workplace monitoring as it currently exists is to only use communications devices that are exclusively under your control (not employer issued) and whose operation is in no way linked to the employer’s equipment.

What are your feelings on acceptable use policies and their efficacy? Acceptable use policies go a long way towards recognizing the need for a reasonable amount of personal communication when at work. Still many of these policies do not go far enough in that they continue to allow random monitoring without cause but simply set up a framework of rules that inform the employee of what types of behavior are acceptable or not. They may protect employees from inadvertently doing something that could affect their employment status but won’t protect their privacy.

What is most egregious is that it doesn’t have to be this way. There may have been a time when monitoring technologies were too crude to adjust to a particular acceptable use policy but that is no longer the case.

Monitoring software is now highly customizable and if desired can be used in conjunction with an acceptable use policy that does not require random monitoring of personal communications. Even so monitoring is often adopted as a supposedly easy solution to the far more difficult task of instituting and maintaining good management. It is not and will never be a good alternative, though.

Do you see the landscape changing in favor of the employee or the employer regarding e-mail privacy? There have been various attempts at the state and local level to pass legislation that would introduce some balance in this area. Where employers could meet reasonable business objectives and employees could maintain a comfortable level of privacy. As of yet they have met with little success. There is no reason to believe the status quo will change any time soon.

Can you point to any specific cases where an employee was dismissed for improper e-mail conduct? Alana Shoars was in charge of the Epson Torrance, Calif., plant e-mail system. Ms. Shoars assured Epson employees that their e-mail was private. She discovered later that her supervisor was reading all employee e-mail in the Torrance plant. [Shoars v. Epson America]

Air force machinist Donald Thompson is placed under investigation [in 2004] by the Office of Special Counsel for forwarding an e-mail lampooning the president’s qualifications. “To me, sending it was just an electronic version of water cooler chit chat,” he said.

Heidi Arace and Norma Yetsko, two employees of the PNC Bank were terminated after forwarding jokes on their company’s e-mail. Such letters had been regularly sent in the past by fellow employees with the attention of the employer and they had previously never enforced any monitoring policies.

More importantly, though, for every employee that has been reprimanded or terminated for an e-mail message, there are literally millions of employees whose personal communications are being read everyday without their knowledge.

Sandra Gittlen is a freelance technology editor near Boston.

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