Most US employers monitor e-mail and web use due to lawsuit fear

According to the 2001 Electronic Policies and Practices Survey, released this week by the American Management Association, The ePolicy Institute, and US News and World Report, US employers have become increasingly aware of the dangers posed by staff e-mail and internet use in the workplace and are taking steps to reduce their potential liabilities.

Of the 435 employers surveyed, 61.6% exercise their legal right to monitor employees’ e-mail and internet connections. Among employers who monitor, 68.3% cite legal liability as the primary reason to keep an eye on employees’ on-line activity.

Monitoring cannot eliminate all workplace liabilities. While the federal Electronic Communications Privacy Act (ECPA) gives US employers the right to monitor all e-mail traffic and internet activity on the company system, it does not always prevent outraged employees from filing invasion of privacy claims.

Nancy Flynn, executive director of The ePolicy Institute advises employers to use written e-mail, internet and software policies to give explicit notice that US employees do not have a reasonable expectation of privacy; that the company has the right to monitor anything transmitted or stored on its computer system; and that management intends to exercise that right.

In the UK, businesses can monitor on-line activities of employees for business purposes if they follow certain rules, although UK employees have more rights to privacy.

Around 84% of the US survey respondents notify employees of the organisation’s legal right to monitor on-line activity. Among those monitoring, 86.9% have a written e-mail policy, 83.1% have an internet policy, and 67.5% have a software policy.

However, barely half (50.6%) of employers require staff to acknowledge such policies in writing. “Stave off invasion of privacy and wrongful termination lawsuits by securing employees’ written consent to have their electronic messages read,” says Flynn, who advises employers to have employees sign and date communication policies to demonstrate they understand them and accept personal responsibility for compliance.

Particularly vulnerable when it comes to saving old e-mail, only 35.4% of employers have a document retention and deletion policy in place.

Survey results related to personal use of company e-mail and internet systems reveal that 39.3% allow employees full and unrestricted use of office e-mail, while only 11.7% grant staff the same unrestricted access to the internet. Among companies that allow personal internet use, 65.3% restrict access to web sites, with 76.6% of employers most concerned about keeping explicit sexual content off employees’ screens.

Further information is available in our article on the UK laws of monitoring employees. A free Communications Policy is also available from OUT-LAW for businesses wanting to comply with equivalent UK rules of monitoring.