While some of the most embarrassing email leaks have occurred in court, rank-and-file employees are also at risk, thanks to liberal workplace monitoring rights for employers. Legal experts say notifying employees of monitoring practices destroys "a reasonable expectation of privacy" in the workplace in the eyes of the court. And more and more companies have moved to put such "cyber policies" in place to address staff privacy. In addition, most corporations have written rules specifying that employees should not send email with offensive or harassing language or inappropriate jokes. "It's been almost uniform now because it's so critically important for employers to monitor email," said Littler Mendelson's Brown. In fact, 78 percent of US firms monitor employee communications in some way and almost half of businesses track email, a dramatic jump from nearly 30 percent in 2000, according to an April report from the American Management Association. In addition, the Privacy Foundation said that about 14 million employees are under constant surveillance. But many employees don't pay heed to company warnings of email tracking. For example, the Washington State Department of Labor and Industries in April fired six employees for sending email that contained references to vulgar sex acts and illegal drug use. Shanti Atkins, head of content and business development for Employment Law Learning Technologies, said that because many employees develop their Internet and email habits in their private lives it's difficult for human resources to train staff to use discretion with email at work. Still, Atkins said that Human Resources training is blossoming in this arena, because more and more companies are frightened of legal cases. "People very easily fall into the trap thinking that there's a division between their personal and business lives," said Yobie Benjamin, chief technology officer at Ernst & Young. "Even to this day, with the Andersen and Enron scandal, people are as cavalier with email as they are with the phone." Of course, even phone conversations can come back to bite executives. A voicemail left by Hewlett Packard Chief Carly Fiorina to her company's chief financial officer was leaked to a newspaper during a high-profile vote on the company's merger with Compaq Computer. The message was featured in a lawsuit brought shareholder Walter Hewitt charging the company with misleading investors over the merits of the deal. A judge found no evidence of wrongdoing in the case, however, and upheld the vote result. Training employees
Companies have started taking two new formalised approaches to email. The first aims to control the content of email by reminding employees that email can be monitored and encouraging them to be cautious about what they write, particularly with customers or partners. Even when employees are discussing their own private views, it can come back to sting a company in litigation, according to Steptoe & Johnson's Baker. "There is a real worry for companies that employees who shouldn't be speaking for them will end up as poster children for the company's attitudes because of an email that has been turned up in discovery," he said. Baker joked he would like to have an email server that bounces back a message for verification, prompting the authors about whether they really meant to say those words. More recently, legal experts say that companies are increasingly aware of the costs of housing all the data generated by email. Consequently, businesses are adopting data-purging policies to save on storage costs. Some are destroying all email after 90 days and others after two weeks, depending on the business. Microsoft spokesman John Murchinson said the company does not comment on its internal policies. Oracle representatives could not immediately be reached for comment. Deleting files can raise tricky legal issues. Federal law requires some industries to maintain records including email for a set period of time. Brokerage firms, for example, must keep all communications for three years, according to the National Association of Securities Dealers Regulation. Legal experts said that all companies should have strict policies for purging email messages, whether it's two weeks or three months after they are sent. But they caution against employees or companies from randomly deleting messages in spurts or after a legal request for review, which would be considered obstruction of justice. Companies should not consider purging a foolproof method for keeping awkward messages from ever seeing the light of day. Computer forensic tools offer surprisingly robust methods for recovering documents that companies thought were deleted, according to experts. Inexpensive software utilities from the likes of Norton can be used to scour hard drives for traces of deleted material. Baker said that more sophisticated forensic experts can even tease out scraps of deleted material to "reveal a lot if you have access to a hard drive." Email may also propagate in ways that complicate the process of wiping a record clean forever. For example, email sent to someone who accesses their email over a public Internet service provider may be recovered by searching the ISP's computer systems, which are not under the control of the company. That's not to say there are no defenses against email accusations. Some explosive allegations detailed in email have been successfully challenged on forgery grounds. In 1997, Oracle chief executive Larry Ellison fended off a wrongful employee-termination lawsuit that hinged on a single email. Using cell phone records that placed him in a different location when the email was sent, he successfully argued that the message was a fake. Such cases are the exception, however. In the end, experts say, only discretion can protect people from themselves, and that, unfortunately, is a resource that is all too often in short supply in the easy-come, easy-go exchanges that characterizes so many email conversations. "People aren't ever going to learn their lessons," Baker said. "Most people don't get burned by the discovery of email until they get burned really bad."
For all job and work-related news, or to search for a job and get information on training, go to ZDNet Jobs.
If you have something to say about work and employment issues say it here at the Jobs Forum.
Let the editors know what you think in the Mailroom.
