E-Mail Trail: Big Boss is watching office messages
The Detroit Free Press carried an article November 10 on the hot topic of personal E-mail and Internet use at the office by employees. The article, linked below, correctly observed that personal E-mails and Internet use by employees at the office are increasingly common. The article also correctly observed that many companies monitor Internet use and personal E-mail and that employees have no legal protection against such monitoring and may be subject to discipline of dismissal for such usage. The article also contained the folowing advice from a partner in a local law firm:
"What an e-mail and Internet use policy should do:
"-It should remind employees that electronic mail is the property of the company and of the employer, and that they should not be using e-mail for personal messages.
"-It should tell employees that they shouldn't be accessing the Internet for anything but business purposes and that the company will review use at any time.
"-It should say that the employee should have no expectation of privacy in e-mail."
The article performed the useful service of warning employees that the chances are good that their privacy may be routinely violated by their employers when they use company e-mail for personal or business purposes and that their use of the Internet may also be monitored. The law affords them little or no protection against such monitoring.
However, contrary to the "Policy Parameters" accompanying the article, whether it's realistic or wise policy for employers to ban all personal use of company e-mail or Internet is doubtful, and how to apply such a policy is another issue.
The plain fact of the matter is that in most organizations, public and private, personal use of employer E-mail and Internet access is widespread and no more harmful to the employer's interest than using a company phone to let a spouse know you're working overtime and will be late for dinner, arranging to meet someone for a beer after work, or using the Internet instead of the Yellow Pages to find a number or make a plane reservation. These uses can actually save time and increase productivity in the workplace.
Spending excessive time on personal use of the Internet or E-mail is a legitimate issue for employers exactly the same as more traditional ways of wasting time on the job such as reading the sports page, gabbing with co-workers when there is work to be done, or spending excessive time on personal phone calls. However, absolute prohibitions of personal E-mail or Internet use, especially if they are selectively applied, make no more sense than prohibitions on personal phone calls or reading the morning paper during a break or lull in work activity.
For several years I was involved in ruling on unemployment compensation appeals for the state appeals board. Toward the end of my term we had a number of cases where employers attempted to use violations of company E-mail and Internet use policy to disqualify dismissed employees from eligibilty for unemployment compensation. In several of these cases we ruled against the employer because the dismissed employee was able to show that personal E-mail use was widspread in the company.
In one case involving a Big Three auto company, the employee's own supervisor admitted at the hearing that he sometimes communicated with his wife by company E-mail. The claiman's testimony that other employees in his office used company facilities to send and recieve personal E-mail was un-rebutted. This meant that the company's administration of the policy was inconsistent and, therefore, the dismissed employee's personal E-mail was found not to be disqualifying misconduct, per se, under the unemployment compensation statute which requires "willful disregard of the employer's interest."
Other cases which involved sending, accessing or forwarding risque or pornographic jokes, pictures or other material were usually produced unfavorable results for claimants. I found myself in the minority in some cases where the material was selectively disseminated and not displayed on a monitor where it could be seen by others who might find it offensive. However, the majority of the appeals board found for the employer in nearly all cases involving risque or pornographic material even though in many of the cases the material was no more offensive than that which could be seen in any museum or lingerie ad in a magazine or mail order catalog.
My position in those cases, frequently in the minority, was that for an employer to prevail in disqualifying a dismissed employee from eligibility for unemployment compensation they must show that (1) there was a published employer rule on E-mail and Internet use; (2) that a significant amount of work time was wasted after a warning by the employer; (3) that the rule was applied uniformly, not selectively; and (4) that jokes or other material actually offended someone or were observable on the employee's computer monitor.
These points were my position, not that of the majority on the appeals board or in opinions rendered by state appeals courts. Unemployment compensation law on use of the Internet by employees is only now in the process of being defined by court decisions.
Note: The law in most states where employment is "at will" offers no protection against dismissal by employers for whatever reason other than discrimination due to race, sex, age, religion, national origin or handicap. Moreover, state unemployment compensation statutes are similar, but differ in significant respects from state to state. My knowledge is based on my experience in Michigan. Finally, my comments address only a dismissed employee's eligibility for unemployment compensation and my thoughts on what a reasonable employer E-mail and Internet policy should be--
A realistic and fair policy should, as in the case of telephone use for local calls, permit personal use of company E-mail and Internet access so long as it does not interfere with the employee's work. Attempting to enforce an absolute prohibition against personal E-mail or Internet use is unnecessary and unrealistic in today's world. And, although pornography is hard to define, a reasonable policy should prohibit use of employer facilities to disseminate pornographic material in the workplace.
The newspaper article which gave rise to the above comments is linked below.
Comments would be appreciated on what your employer's email/internet policy is and whether, in your experience, employees send and receive personal emails or access the Internet at the office.