You've got e-mail — and a lawsuit on your hands

Home Channel News, Oct 26, 1998 by Carol Tice

Company e-mail needs written policy, careful oversight

NATIONAL REPORT -- It's 2 a.m. Do you know where your e-mails are going? Or what they say?

Chevron certainly wishes it had known. Last year the oil company paid $2.2 million to settle a sexual harassment lawsuit over its e-mail content. The suit was brought by a group of women employees that alleged a Chevron subsidiary allowed its internal email system to he used to transmit sexually offensive messages, including a "joke" sheet titled "25 reasons why beer is better than women."

In the home improvement industry, where the electronic world is still somewhat new, the idea that e-mail could be a source of legal trouble is also new to some companies.

An informal poll conducted by NHCN of a dozen retailers and co-ops that have e-mail systems showed that only half had a written e-mail policy, and three-quarters did not monitor the content of their employees' missives.

Five of the companies reported at least one incident involving problematic electronic communications: mash notes sent to colleagues; pornography downloaded off the Internet onto company computers; employees using e-mail to solicit for charities; and raunchy jokes of the type that got Chevron into trouble. None of the companies have been sued as a result of the incidents, but legal experts would attribute that to sheer luck.

American industry, as a whole, isn't doing any better. A 1997 Human Resource Management Association member survey of all types of companies showed that 86 percent of the firms polled had e-mail. But 70 percent had no written e-mail usage policy, 22 percent had received complaints from employees about receiving inappropriate e-mails, and 6 percent had been asked to produce their e-mails in a lawsuit.

E-mail is forever, somewhere

How can a company keep its e-mails from turning into a legal nightmare? A written policy regarding proper e-mail use is a start, according to Michael Overly, a Los Angeles-based attorney and author of two books on e-mail legal issues and electronic evidence (see sidebar).

In a lawsuit, an even more crucial point will be the ability of a company to demonstrate it has implemented the policy and made employees aware of it. One way to show that is to have employees re-sign the policy every three or six months, Overly noted.

Employees consider e-mail to be either private or transitory; both assumptions are false. Rather than regarding e-mail as private correspondence, it's better to liken it to a written postcard, according to Portland, Ore.-based computer-forensics expert Andy Johnson-Laird of Johnson-Laird Inc.

"It's going to live for a long time, and anyone can look on the back and see what I'm saying," he said. "No one in their right mind would write 'Fire that bitch' on a postcard and send it through the U.S. mail. Yet that, and far worse, is routinely sent over electronic mail."

Employees using company computers to send e-mail have no privacy rights, courts have held, even at companies that have actively fostered the impression that employee e-mail would be private.

One home improvement dealer with an e-mail policy is Curtis Lumber, based in Ballston Spa, N.Y. "Our basic policy states, 'If you don't want to see your work on the front page of the local newspapers, don't send it via e-mail, and better yet, don't even create a document,'" said Jay Curtis, the company's president.

Recent rulings have indicated that companies practically have an obligation to monitor email transmissions. Companies have been held liable for the actions of their managers, courts have held, even if they were unaware of their deeds -- or in this case, e-mails, Overly pointed out.

Due to cases like Chevron's, some companies are beginning to utilize screening programs that check automatically for certain "red flag" words. This preserves some level of employee privacy, because the e-mail is not actually read by a person, but only scanned for problems.

One program, MlMEsweeper, automatically scans e-mail for company-specified key words. The program is made by Content Technologies in Kirkland, Wash.

Though NHCN could not identify any home improvement company that has taken such drastic measures, some are monitoring e-mails, particularly transmissions sent to "all managers." One company surveyed has structured its e-mail so that all messages are initially received by the company president, who then forwards them to the appropriate staffer after the chief executive looks them over. Another home improvement chain has installed software that adds a blind copy to the vice president of info-services on all e-mails sent to a list.

As Microsoft recently learned - when the U.S. Justice Department dredged up years-old e-mails from company computers to use in its antitrust case against the Redmond, Wash.-based software giant - those supposedly ephemeral e-mails are harder to get rid of than a printed memo. Even if you remove your e-mail completely from your computer, there are several other places a copy of could be lurking, including the computer of the person t whom you sent the message.