Shades of gray: what is "acceptable and tolerable" in electronic communication?

RMA Journal, The, Oct, 2005 by Paul Johns

Shred ... delete ... gone. Or not.

The records we thought we destroyed are still there, ready to be coaxed from our PCs by sophisticated search and compliance technology. Corporate scandals and ethical improprieties are being identified and caught on a regular basis through the monitoring and surveillance of employee communication--e-mail, instant messaging, Web-mail, blogs, and even handhelds.

Nearly eight out of 10 employers have established policies governing e-mail and Internet use. According to a recent survey from American Management Association and the ePolicy Institute, 25% of firms that monitor employee communication have fired workers for misuse of e-mail and/or the Internet. As the penalties increase, it's essential to know which types of communication are acceptable and tolerable. Below is a guide to help employers and employees navigate the increasingly complex landscape of electronic communication and its acceptable and unacceptable uses.

Acceptable: Posting or hosting a blog with the intent of distributing corporate news and public information. Unacceptable: Using blogs to distribute "insider information" and confidential corporate material.

The blog ... can indeed be...fabulous for relationships. But it can also be much more: a company's worst nightmare, its best chance to talk with new and old customers, an ideal way to send out information, and the hardest way to control it. ... Suddenly, everyone's a publisher and everyone's a critic.

--David Kirkpatrick and Daniel Roth, FORTUNE, December 2004.

Acceptable: Communicating via instant messaging (IM) with the understanding that it is a regulated form of business communication and should be treated accordingly. Unacceptable: Sharing personal, inappropriate, or confidential information through instant messages.

According to ePolicy Institute, 50% of workplace IM users send/receive risky content, including attachments, jokes, gossip, confidential info, and pornography.

Acceptable: Using electronic communication to compliment appropriately or thank fellow employees. Unacceptable: Harassing (sexually or otherwise) coworkers via e-mail or IM.

One in 20 organizations has battled a workplace lawsuit triggered by inappropriate employee e-mail, according to the 2003 E-Mail Rules, Policies, and Practices Survey from the American Management Association. With 90% of employees using the company e-mail system for personal correspondence, the likelihood of staff sending racy, romantic, and risky e-mail is huge.

Acceptable/Forgivable: Accidental breach of policy despite familiarity with corporate and regulatory policies. Unacceptable: Using Web-mail, handhelds, and other methods of communication with the intention of circumventing policy.

A survey of more than 700 companies by the Society for Human Resource Management found that almost three-quarters of the companies monitor their workers' use of the Internet and check employee e-mail, and more than half review employee phone calls. According to a study by the American Management Association, businesses offering financial services--such as banks, brokerage houses, insurance firms, and real estate companies--are most likely to monitor their workers' communications.

Acceptable: Maintaining a Web-mail account, such as Hotmail or AOL, for personal e-mail. Unacceptable: Using your Web-mail account for business-related communication or for personal communication while working.

The Sarbanes-Oxley Act of 2002, which holds corporations accountable for accurately reporting actions and processes, applies to all business communication, whether sent via corporate e-mail account or personal Web-mail account. Violating SOX can result in criminal and civil prosecution, up to $1 million in penalties and as many as 10 years in prison.

As the number of regulations associated with electronic communication increases and employers turn to sophisticated technology to monitor and enforce electronic policies for communication, employees can no longer assume that the delete key will permanently delete the record of a conversation and shield them from penalty. Additionally, policy management technology can analyze and review behavior patterns, determining the intent of employee behavior. As companies turn to technology to avoid fines and lawsuits, employees are challenged to use electronic communication in an acceptable and tolerable manner.

Paul Johns is vice president of Global Marketing, Orchestria, a company providing active policy management software. In 2005, Orchestria was recognized by Compliance Reporter as Vendor of the Year for electronic communication compliance. Readers are invited to visit Orchestria's Web site at www.orchestria.com.