Difficulties in the use of email and voicemail for companies

Employers are increasingly using email to conduct business and communicate with their employees. Email is faster, more convenient, and more versatile than faxing or sending hard copies. Its use has been facilitated by Microsoft, which offers seamless coverage between offices and the Internet, IBM through Lotus Notes, and many other commercial service providers, such as AOL. Small businesses and professionals also use email regularly and frequently.

Companies do business through their executives, professionals, technical, administrative and support employees. Virtually all of these people use e-mail and voicemail regularly and routinely use the Internet to gather information, communicate ideas, and send and receive information.

Obviously, the proliferation of email means that many confidential and sensitive business matters, not to mention personal conversations, are conducted electronically rather than in writing or over the phone. These electronic exchanges have the potential to streamline work and interpersonal communications. They also have the potential to inadvertently divulge or disclose sensitive information, such as business plans, marketing information, or other valuable internal documents. This ease of communication between employees and/or with third parties can subject a company to embarrassment or even legal liability for the dissemination of unauthorized or inappropriate material.

Employees at all levels also use the Internet for business activities, personal inquiries, and pure entertainment. With long, harassing and sometimes boring work hours, employees are often tempted to enter forbidden domains. Not only is there the possibility of wasting valuable time, but there is also the danger of transmitting offensive material in graphic and/or written form.

These circumstances require an employer to establish and enforce a clear and sensible policy governing electronic communications, confidentiality, and employee conduct while engaged in such communications. While the employer’s rights in these areas are quite broad, they are not unlimited. For example, despite a legitimate need to know what key employees are doing and saying electronically, employers do not have an automatic or unlimited right of access to electronically generated communications. Rather, such access is limited by the Electronic Communications Privacy Act (EPCA), USC’ et seq., which governs unauthorized access to email and voicemail traveling over telephone lines. This legislation, along with its state counterparts, imposes criminal penalties and civil liability.

An employer is also at risk of becoming a party to litigation over trade secrets, solicitation of key employees, defamatory references, and a host of other situations that arise from email or voicemail or are recorded in electronic and computer records. Electronic or other unprotected transmission of information is tantamount to inviting competitors and would be competitors to view a company’s most important business documents or solicit valuable employees. The lack of a clear policy and its enforcement also invites unnecessary or unproductive uses of key employees’ time and energy.

As should be obvious, these current dangers only underscore the need for all companies to have a comprehensive policy governing employee use of email, fax, voicemail and other electronic media. Communication of confidential and sensitive information must be protected, and rules against improper or inappropriate use by employees of company email, voice mail and computers must be clearly specified.

If you have questions or concerns regarding labor, employment, or civil rights laws, contact us today for a consultation. Our law firm serves clients in the District of Columbia, Maryland, and throughout the country.

Lawrence J. Sherman, Esq.

Washington, DC 20015-2601

(202) 785-0384 (Office Phone)

[email protected] (Email)