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Web designer Brian Ragan, 27, never sends personal e-mail from his work account. Nor does he ever use his work computer for any personal writing or to store personal documents. The reason? He has no idea if his company is monitoring him, "but I always assume it is," he says matter-of-factly.
Smart move. A recent survey from the American Management Assn. (AMA) reported that a surprising 78% of major U.S. companies now keep tabs on employees by checking their e-mail, Internet, or telephone connections, or by videotaping them at work. Active monitoring has skyrocketed in recent years, up from just 35% in 1997.
More shocking is the number of companies taking action against employees based on information gathered through monitoring software. Thirty-one percent of the companies surveyed say they've fired employees for misuse of office phones, e-mail, or Internet connections. And more than 75% reported that they had taken some disciplinary measure for those offenses.
"It comes down to three words: Don't be stupid," says Eric Rolfe Greenberg, the director of management studies for the AMA. Greenberg says employees need to realize that whenever they're using company equipment, especially e-mail, there is a capability for material to be stored for review. "E-mail is a postcard, not a letter," he warns.
BLURRY BOUNDARIES. Companies have every right to monitor what employees do on their networks. Many are concerned with worker productivity, but others realize that they're legally responsible for any information sent from company servers. An e-mail, legal experts say, is the same as sending information on company letterhead.
Nevertheless, the specter of Big Brother makes some employees nervous. With the boundaries between work and home increasingly blurry, should a company be able to read e-mail sent from a company laptop hooked up to a home connection after hours? Legally, at least, the answer is yes.
This is serious business. For example, if one employee is looking at pornography on-screen in his cubicle and another employee happens to see it, he or she can sue the company for creating a hostile work environment. Witness what happened at Dow Chemical. In two separate incidents last year, the company dismissed 90 workers who refused to stop sending other employees pornographic material over e-mail. All of the employees defended the messages, claiming their right to free speech via e-mail was protected under the First Amendment. It wasn't.
"BACKSTABBING BASTARDS." Truth is, at work, you pretty much check your right to privacy at the entrance. Privacy rights in the workplace aren't protected by any federal law. The government doesn't even require employers to notify workers that they're monitoring personal e-mail and Internet use. Only Connecticut requires advanced notification of workplace surveillance.
The federal Electronic Communications Privacy Act grants employers the right to monitor employee conversations if they occur during the ordinary course of business, or with employees' implied consent. And the courts have been very broad in defining what constitutes consent.
Take the case of Smyth v. Pillsbury. In 1996, Pillsbury had an stated policy that employees' e-mail would be kept confidential and would not be intercepted or used as grounds for reprimand. Relying on the company's assurances, the plaintiff, Michael A. Smyth, exchanged angry e-mail with a supervisor that included the words, "let's kill the backstabbing bastards." Smyth was fired for transmitting inappropriate comments on the company e-mail system. The court ruled in favor of Pillsbury, saying that because Smyth had voluntarily conveyed such sentiments over e-mail, any reasonable expectation of privacy was lost.
FAILURE TO COMMUNICATE. So what are appropriate guidelines? Companies have the right and responsibility to ensure that their equipment is being put to proper use. But most experts in this area say companies should explain when communications will be monitored and whether the employee will be notified.
Employers also should document that employees have received and understood the policies. An unscientific survey of about two dozen people conducted by BusinessWeek Online showed that more than 50% of employees had no idea whether their companies are monitoring activity. Compare that to the AMA study, which reported that 90% of companies surveyed say they had informed employees of their monitoring policies, and we would seem to have a failure to communicate.
"A lot of these policies get buried in the fine print. To the extent that an employer can give you information, say on a screen when you log on, to let you know they are monitoring, that is really helpful," says Paul Schwartz, a Brooklyn, N.Y, attorney and privacy expert.
COMMON SENSE. Finally, policies should explain why e-mail or other communications are being monitored. The reasons might include protecting company secrets, helping to improve customer relations, and ensuring compliance with laws and regulations. The latter is particularly important in the financial-services sector, where companies have to make sure that brokers and bankers are not misleading customers or suggesting moves that may fall outside of strict financial regulations. It's also common sense: Letting employees know what is going on fosters better employer-employee relationships and may help avoid inadvertent misuse of e-mail.
As for employees, a good rule of thumb is to keep personal communications private by using a Web-based free e-mail service, such as Hotmail or Yahoo Mail, and steering clear of controversial Internet sites. "I'm sure my company has very little interest in my personal e-mail or what personal documents I might be working on, even if I work on them after-hours, but why invite the issue?" says Web-designer Ragan.
Workers would be well advised to remember the old adage: Never put anything in writing you wouldn't want to see on the front page of the newspaper. Or, in the digital age, on your boss's PC.
Black covers privacy issues for BusinessWeek Online twice a month Edited by Douglas Harbrecht
Copyright 2001 , by The McGraw-Hill Companies Inc. All rights reserved.
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