The Radicati Group, a market research firm, estimates that in 2011, the average corporate employee sent and received 105 e-mails a day. The group also reports that corporate e-mail accounts are expected to begin to grow at a faster rate than personal e-mail accounts. Is your company prepared for the legal implications of this ubiquitous medium?
In "Smart Policies for Workplace Technologies," Lisa Guerin reports that half of all employees have sent or received e-mails with jokes, stories, or pictures of a "questionable" nature. In addition, 6 percent of employees have e-mailed confidential company information to individuals who should not have such information. Ms. Guerin also notes that 15 percent of companies have faced a lawsuit triggered by employee e-mail usage, and almost one-quarter of companies have had their e-mail subpoenaed by courts and/or regulators. And more than a quarter of companies report that they have fired an employee for e-mail misuse, most often for inappropriate or offensive language or other violations of company rules.
The widespread use of e-mail is fraught with potential legal ramifications. As a general matter, e-mails drafted by employees may be legally binding on the company. This may create problems for employers given the relatively casual nature of e-mail correspondence. For example, an offhand e-mail from a brokerage company analyst calling a stock that the company was recommending at the time a "piece of junk," among other similar e-mails, played a key role in an investigation by the state attorney general that resulted in a multimillion-dollar fine to the company. Due to the quick and informal nature of e-mail, employees may also be more imprecise in their e-mail correspondence than they would be in formal written documents, which may also create disputed issues of fact in future litigation.
Employees who engage in harassment, discrimination, or other policy violations via e-mail may also subject their employers to liability. For example, e-mails are oftentimes uncovered in the course of litigation that tend to show that individuals in positions of authority at the employer had knowledge of alleged wrongdoing and failed to properly report that conduct. And, as e-mail is searchable, archivable, and retrievable, often long after it is sent, such e-mails can haunt employers and create liability for them well into the future.
Employees may also use e-mail to harm their employers. Documents and other company information are easily stored or converted to electronic form and readily transferred by e-mail. Employees may misappropriate confidential and proprietary information or trade secrets simply by e-mailing them to a personal account in a matter of seconds. Employees may also easily disgorge such information to others. Not all employees may engage in these acts maliciously; an employee may think nothing of attaching a sensitive document to an e-mail that s/he would never take from the office in hard copy.
Employers may also run into legal woes when attempting to monitor employee e-mail use. Certain policies or practices, or the failure to have in place a clear policy, may result in invasion of privacy claims. Courts are beginning to address the contours of permissible monitoring of employee e-mail accounts and use of information gained from such monitoring.
Finally, for employers who permit, provide, or require their employees to use blackberries or smart phones to access work-related e-mail, the specter of potential wage and hour issues arises in the form of whether such use constitutes compensable work time.
Given the breadth of possible legal issues and the central function of e-mail in daily business operations, companies should reflect on their e-mail policies and practices, including retention and destruction practices, as well as training for employees and managers.