Keeping an Eye on E-Mail

Workforce, April, 2001 by Matthew T. Miklave, A. Jonathan Trafimow

Q: If an employer knows that an employee is abusing e-mail for personal benefit (e.g., chatting with a coworker or friend about non-work-related stuff), what can the employer do? Is it legal to monitor the content of e-mail messages?

A: Given current trends in sexual harassment litigation, more and more employers have adopted and enforced "zero tolerance" policies regarding misuse of e-mail, computers, telephones, and equipment. In light of the risks created by unrestricted use of computers, e-mail, and the like, employers should adopt and consistently enforce such policies.

Courts have routinely permitted employers to monitor their own equipment and to take disciplinary action when employees misuse that equipment. Several courts have permitted employers to monitor e-mail systems to prevent their being used for personal business or to harass, intimidate, or offend other employees.

The federal Electronic Communications Privacy Act of 1986 (ECPA) makes intentional and unauthorized access to an electronic communication service facility, or the obtaining or disclosing of the contents of such a system, unlawful. The ECPA specifically states that the service provider may intercept such transmissions and that interception is permissible as long as one party to the conversation consents to the interception. Thus far, no court has applied the ECPA to declare unlawful an employer's interception of data on its own computer system.

Furthermore, while some federal and state statutes make the monitoring of telephone conversations illegal, an employer's announced policy of monitoring telephone conversations for business purposes might be sufficient to establish employee consent if the employee remained employed following adoption of the policy. We note, however, that a recent Ninth Circuit Court decision found that an employer might have unlawfully intercepted electronic information when it accessed an employee's personal Web page without authorization.

Notwithstanding the above, we generally recommend that employers adopt, publish to employees, and enforce strict rules prohibiting the use of office equipment (including e-mail, voice mail, telephone, computer, and photocopy equipment) for non-business-related reasons. The employer's policy should expressly note that e-mail and other systems might be monitored to ensure compliance. In addition, employers would be well advised to monitor e-mail and related systems to ensure that employees do not use such systems to create a sexual or other discriminatory hostile environment. Employees who violate these policies should be appropriately disciplined.

If employees are using office equipment to organize or engage in other workplace-related advocacy, before taking disciplinary action, employers should satisfy themselves that their rules were clearly articulated, widely distributed, and consistently enforced.

Background Checks

Q: I'm drafting a policy on criminal-history checks for our organization. I work for a small (fewer than 20 employees) not-for-profit organization that provides services for girls from ages 5 to 17. I know they should have had a policy prior to now, but I can't work retroactively. Here's my question. All my research indicates that we can ask about felony convictions or arrests for a felony with no disposition, but to gather information about other arrests that did not result in felony or misdemeanor convictions could spell trouble with the EEOC.

My supervisor, however, is insistent that we need to know if an individual has been arrested for a violent or sexual crime. Her concern is that a person could have been arrested, done what was accused, but "gotten off" on a technicality. I can understand her concern, but can't find anything that would allow us further latitude in gathering this information because of the type of organization we are.

A: Well, you have come to the right place. There are a few things that you should be concerned about.

(1) Check your state's law. Many states absolutely prohibit use of criminal-arrest information. Other states do not.

(2) The EEOC has taken the position that an employer cannot use criminal-arrest information BECAUSE its use would have an adverse or disparate impact. Even if the policy has a disparate impact, however, it might be justified if it is based on business necessity and is job-related. Thus, while there is an element of risk here, you may have to do a balancing act.

(3) If you are conducting background checks, you must comply with the federal Fair Credit Reporting Act (FCRA), requiring authorizations and notices. Make sure you comply with any corresponding state law requirements as well.

(4) Be alert. Even if an employer cannot use arrest information, oftentimes persons with problem histories exhibit behavior in their employment histories that should raise a red flag. For example, if an applicant has frequent job turnover in agencies such as yours and moves from place to place, that might show a pattern that we would want to look at closely.