1. Improper use of email for harassment or discrimination

Already today at least one court has recognized that the Internet could be considered a "workplace" for the purpose of holding an employer liable for sexually harassing employee conduct on the Internet. State and federal laws governing discrimination and harassment are ill defined to address the unique issues that arise out of computer related communications... but employers can take steps to prevent or limit that liability.

As we have discussed in previous articles here in the Braun Consulting News newsletters, employers should develop and implement a formal policy that regulates employee's use of the Internet, e-mail and voicemail systems. This policy should reference and incorporate the employer's sexual harassment and anti-discrimination policies. Employees should be encouraged to quickly report incidents of harassment and discrimination on the Internet or through e-mail to the employer, as the time frame of an employer's response is the pivotal issue in these types of litigation. Employees should realize that the consequences of improper behavior over the Internet are the same as anywhere else in the workplace – discipline and even eventual termination.

Some companies have even developed ways to "monitor" employee communications on the Internet (being careful not to infringe on the employees' privacy and First Amendment rights), but that is beyond the scope of this article. If you need help with these issues, give us a call at Braun Consulting or email us at Contact Braun-BCG.

Don't get caught being lax or looking the other way as this new arena opens up potential liability for employers. Each new technological advance such as the Internet and e-mail expands the horizons for potential misuse and abuse by employees... and the responsibility of the employer to prevent or detect that abuse before it becomes a major liability.

2. Confidential Company information and Copyright/Trademark issues

A potential problem that needs to be addressed by many companies today is the disclosure of privileged, confidential and private information. An employee's ability to quickly (and easily) send messages to one or more persons outside of the company leaves the employer at risk. Among the policies a company may institute regarding e-mail and the Internet would be a policy that no confidential information should be forwarded through e-mail or posted on the Internet without management's approval. Access to confidential materials should be by authorized personnel only.

Employees should be aware of the legal liabilities of downloading or using information they find on the Internet or through e-mail as it relates to other's copyrights and trademarks. It is easy for an employee to "cut and paste" information and increases the risks of copyright and trademark infringement violations.

Incorporating these issues into your personnel policies will help to clarify the potential problems to employees, and may save you or your company much needed resources sometime in the future.

3. Policy and Training

Does your company have a 'technology policy'?
Do your employees know about that policy and what it contains?
When was the last training session held concerning these issues?

If you know the answers to these questions you are on your way to living more comfortably in this electronic age. Many companies put this policy development and training off into the future... in part because they are unsure of how to go about it.

A good start would be to schedule your next activity to achieve these goals right now. Put a time in the schedule to follow up on whichever part of these three questions you think needs to be addressed. If you don't know how to go about creating, implementing or training employees relating to technology policies then your first activity might be to find out more. You can call us at Braun Consulting and we can help.

4. Confidentiality and privacy

Many employees know that electronic communications are company property... many do not.
They often feel that because of passwords and login codes etc. that their messages are private and confidential. They are not.

The growing tension between an employee's right to privacy and confidentiality and the employer's right to monitor the use of its electronic media has been the arena of many critical debates and court decisions. There is an overlap and some gray areas relating to State versus Federal laws, and much of this area has unprecedented rulings and laws. To avoid the tangle of interpretations, possible interpretations court rulings, State and Federal laws etc. you can contact specialists in this field (like Braun Consulting)... and make every effort to implement and enforce your own companies policies.

5. Legal implications of electronic communications

Electronic messages and communications can create potentially discoverable information in Lawsuits. Messages which presumably have been deleted are often capable of being restored and retrieved. The restored messages have been used to support a variety of claims against employers.

Companies have been required to produce computerized information during litigation... and have had to bear the cost of reviewing communications and copying and printing the messages for review. This can be expensive, and sometimes lead to discovery of some real problems.

To avoid this potential quicksand of tracing and reproducing thousands of messages a company should consider a policy of retention and destruction of computerized communications – and should also have a policy which maintains the confidentiality of privileged documents and proprietary business information. E-mail messages often contain the most damaging information for lawyers in litigation because of the degree of carelessness and the casual approach to electronic communications that most employees seem to have.

An "Information Retention Policy" should include the specific time period after which documents are automatically deleted, the requirement that employees regularly discard stored e-mail messages, and the suspension of the deletion process once litigation or an investigation has begun.

One mouse click on the "send" button and an employee can send offensive, harassing, defamatory, or confidential and proprietary information to another employee or third-party... leaving the employers electronic thumbprint on it all the way. Cyberspace has expanded the workplace into a whole new dimension, and an employee's conduct can lead to employer liability now more than ever.