Guide to Computer Law—Number 274
Practitioner’s Perspective
by Holly K. Towle, J.D.
Employee Use of Email
and the Internet—
Considerations for Every Business
Holly K. Towle is a
partner with Kirpatrick &
Lockhart Preston Gates
Ellis LLP (K&L Gates), an international law firm,
and chair of the firm’s E-merging Commerce
group. Holly is located in the firm’s Seattle
office and is the coauthor of The Law of
Electronic Commercial Transactions (2003,
A.S. Pratt & Sons). Holly.Towle@KLgates.com,
206-623-7580.
You’ve heard it before, and it’s still true: millions of employees begin the
work day by turning on a computer and accessing their employer’s network
and the Internet. Employers should take steps to protect themselves from
liabilities associated with employee use of such systems. If protections are
already in place, it might be time to update them. And when employers
use email systems to disseminate important information, they may wish to
track case law or other developments regarding how that is best done.
This article deals with five basic points:
1.
Email is simple to produce and alter. It can be widely and repeatedly
distributed with a few clicks or key strokes. Further, due to email’s
informal style and the widespread (but erroneous) belief that emails
or chat room comments are temporary, many computer messages are
composed and treated casually.
2.
Practitioner’s Perspective appears periodically
in the monthly ReportLetter of the CCH Guide to
Computer Law. Various practitioners provideindepth analyses of significant issues and trends.
Email differs from other methods of communication
Risks from employee activities
Employee use—or abuse—of electronic communication can create
liability to the employer under a range of theories. These include:
• Respondeat superior liability. Employee bad acts, including misuse of email and the Internet, can create liability for the employer
if the bad acts are within the employee’s scope of employment.
• Negligent hiring or supervision. Employee misuse of electronic
communication could expose the employer to liability for negligent hiring or supervision. Unsupervised use of the employer’s
email system to harass or otherwise harm someone could lead
to liability under either theory, although federal protections for
interactive computer services may supersede some state or federal law claims. Moreover, many employers have software that
maintains a record of Internet sites visited by employees—these
employers find such software beneficial in detecting improper
conduct. However, it can also provide damaging evidence that
the employer failed to address obvious employee misconduct.
• Sexual and other harassment. The courts have held employers
responsible for workplace harassment caused by misuse of electronic communication. They may find a “hostile work environment”
when employees are exposed to sexually explicit or suggestive
CCH GUIDE TO COMPUTER LAW
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3.
emails, computer images or other downloads. Even
employee exposure to Internet sites not controlled
by the employer can lead to a hostile workplace. In
addition, employers may find themselves named as
defendants in lawsuits asserting that employees faced
racial, ethnic, religious, or other harassment through
use of email or the Internet.
Defamation. An employer could be sued for defamation if an employee makes a false assertion of
fact within the scope of employment. The Internet
provides an easy mechanism for transmission of
defamatory statements. Where the employer qualifies as an interactive computer service, however,
this state law cause of action may be preempted by
federal law.
Intellectual property infringement. Copyright,
trademark, and trade secret infringement threaten
employers in several ways. For example, employees
could appropriate the employer’s property using
electronic communications (consider a cell phone
with a camera and Internet access). Also, employers can become defendants when their employees
improperly copy the protected intellectual property
of others using the employer’s systems. In selected
circumstances, the Digital Millennium Copyright
Act may protect employers against liability for
infringement. Even if so, employers will not want
their systems to be misused, and some protections
are unavailable if the employer has knowledge of
and ability to prevent the infringement.
Criminal liability. Certain kinds of prosecutions—for example, employee use of the
employer’s computer equipment to traffic in
child pornography—could result in seizure of the
employer’s equipment.
Litigation risks
Email as evidence. While unique in some ways, email
is the same as a letter or memo in at least one important
way: it is an evidentiary record, discoverable and
potentially binding on an employer as an admission.
This also affects the employee, who may become the
subject of a subpoena for workplace emails in, for
example, a divorce or child custody action.
Special issues with privileged communication.
Communications with lawyers regarding legal advice
ordinarily are protected from disclosure in litigation,
but this protection can be waived by a company.
Otherwise protected email communications can
be waived if an intended recipient intentionally
discloses the communication to someone who
should not see it (like a non-employee or lower-level
employee), or if outsiders obtain a copy due to a
failure of security measures. Employers who believe
they can solve these problems with “logos” or other
NUMBER 274
routine notices on emails, are likely unaware of the
limitations of such measures.
4.
Potential employee rights
Privacy. Employee privacy rights can be violated when
the employer obtains a message despite the employee’s
reasonable expectation of privacy. In order to limit
exposure, employers should adopt computer usage
policies clearly notifying employees that email will be
monitored or intercepted. Additionally, some states
have statutes requiring particular forms of notice or
consent. In any case, the policy should deal with actual
practices. For example, does your policy forestall privacy
claims by former employees whose email addresses are
maintained in order to receive business emails sent by
customers unaware that the employee has left?
Some statutes may restrict employer access to data that
would not be protected by traditional privacy laws.
For example, laws increasingly restrict the collection
or transfer of personally identifying information data,
private or otherwise.
Union rights. Under federal labor law, employees have
a number of rights with respect to the formation and
joining of unions or cooperating to address workplace
concerns. An employer interfering with these rights
may commit an unfair labor practice. Restrictions on
employee use of email for these protected activities
could violate the law.
5.
Reducing the risks
Adopt a policy. Elements will vary by employer,
but most include at least the following (assuming
applicable law will allow):
• Employer ownership and control of all equipment
and messages; no employee right to email or Internet access.
• Email and Internet are provided principally for
business use. Personal use can be permitted within
stated parameters.
• No employee privacy in email, Internet and computer contents. The employer has the absolute right
to monitor, intercept and reproduce anything on
the employee’s computer.
• No improper use, including specific prohibitions
against listed behaviors.
• Specific steps to protect employer’s intellectual
property and trade secrets, as well as data of customers.
• Email/computer protocol, including common requirements that employees carefully prepare messages; avoid viruses; limit downloads; not modify
or misuse equipment; store or dispose of email; and
maintain confidentiality.
CCH GUIDE TO COMPUTER LAW
Train. Training lets employees know the proper
behavior and protocol for email and Internet use.
Training also should cover the impact of employee
emails under contract law: employees are potential
contract “waiver/amender” machines who can
disrupt an employer’s otherwise careful contracting
procedures. While some employees will break rules
intentionally, training can prevent problems or abuses
that result from ignorance or inadvertence.
Track Developments. In a recent case, an employer
learned that not all emails are equal. In Campbell
v. General Dynamics Gov’t Systems Corporation,2 a
Massachusetts district court concluded that the format
used in an employer’s email notice was insufficient to
count as notice of a change in employment policy to
include mandatory arbitration. Notably, the change
deprived an employee with a discrimination claim
under the American With Disabilities Act, of “rights
guaranteed to him by federal law.” The court said:
“[S]ending a mass email message, without more, fails
to constitute the minimal level of notice required by
the First Circuit under Rosenberg and other decisions”
regarding the Federal Arbitration Act.3
The court’s analysis should have focused solely on
the content of the notice itself, i.e., did it provide
notice as required by law? Instead, it also focused
NUMBER 274
on the medium of email itself as a possible reason for
inadequate notice. For example, the court correctly
noted that individuals receive many emails during the
day and that it is sometimes difficult to discern critical
ones. Although that is true, it is also true of postal
mail arriving with junk mail, or of intra-office physical
mail which is composed of both routine and critical
memos, as well as myriad other critical and mundane
communications. The court also lumped receipt of an
email showing the “sender” as the company president
and the topic as “New Dispute Resolution Policy,” with
emails about birthdays. It is not credible to assume that
an employee does not know the difference.
Nevertheless, the case correctly reflects principles that
when a contract or notice is required to meet certain
requirements, use of email to meet those requirements
needs to be measured against the requirements and one
should not assume that all communications are equal.
Thus, if a requirement is that a particular communication
be conspicuous, then the communication needs to be
conspicuous whether that is done electronically or nonelectronically. The basic rules still apply!
ENDNOTES
1
Campbell v. General Dynamics Gov’t Systems Corporation,
321 F. Supp. 2d 142 (D.MA 2004).
2
Id. at 150.