EMPLOYEE USE OF COMPANY E-MAIL

MONITORING & PRIVACY ISSUES

TECHNOLOGY ISSUES-OF-THE-DAY

80s – Proliferation of the PC

90s – Internet00s – Privacy in

the workplace

PRIVACY IN THE WORKPLACE: THE ISSUE

Has the attention of the U.S.’s largest corporations

There are presently 110 Chief Privacy Officers among such corporations.

By 2002, it is expected the number of CPOs in such corporations will rise to between 500-1000.Source: John Schwartz, (Chief Privacy Officers Forge Evolving Corporate Rules), New York Times, 2/12/01.

EMPLOYER USE OF COMPANY OWNED TECHNOLOGY

90% of all businesses having more than 1,000 employees have e-mail and employees sent over 60 billion electronic messages in 2000

Internet use: - 171 million in 1999- 304 million as of March 2000

Employers’ electronic monitoring of employees’ communications has doubled since 1997

BACKGROUND

The ACLU estimates that the number of employees monitored in the workplace jumped from 8 million in 1991 to 30 million in 1999

Nearly 3/4ths of major U.S. companies record and review their employees’ telephone calls, e-mail messages, internet searches and computer files

29% of U.S. companies block access to some internet sites

50% of such companies have had to discipline employees for misuse of company internet or e-mail and 25% had discharged employees for doing so

Recently, Dow, The New York Times & Xerox reported mass firing for employee misuse of company’s technology

A recent poll found 89% of Americans concerned about invasions of privacy

WHY THE MONITORING?Employee use of company-owned

hardware & software for personal use during work hours affects productivity

Such conduct can also lead to all manner of legal problems:Sexual harassmentDiscriminationAnonymous web posting (trade secrets &

defamation)Harm to 3rd partiesDiscovery in litigation

FACTS ABOUT INTERNET USAGE

“Surprising Internet Use Statistics” by Websense, Inc. (http://websense.com/management/stats.cfm)

Sample: 62% of U.S. companies’ employees surf for

sexually explicit material on the internet The #1 search term used is “sex” and

“pornography/porno” is the 4th most used search term

72% of all internet porn traffic occurs during working hours

During working hours, 9% of employees earning less than $35,000 surf the internet for a new job while 11% of those making between $75,000 and $100,000 search for a new job

Other data estimates that the cost to companies from this type of lack of productivity is $5.3 billion

ONE RESULT OF MONITORING

Employee Invasion of

Privacy Claims have increased 3,000% in the past ten years

FOUR REASONS TO MONITORFailure to monitor employees can result in substantial

exposure from within the company or by parties outside;Active monitoring by management can avoid disclosure of

company trade secrets and defamation of the corporation;Maintaining an effective monitoring system will discourage

dissemination of internal electronic communications that could be used against the company in the event of litigation; and

Employee productivity and even retention can be maintained through an effective policy and monitoring system

HOW SHOULD AN EMPLOYER RESPOND TO THESE ISSUES?

HR and IT work with your legal counsel to formulate a monitoring program

GENERAL PURPOSE FOR COMPANY POLICIES

Insulate employer from liability for unauthorized employee conduct respondeat

superior doctrine

WHAT SHOULD YOU INCLUDE IN YOUR PLAN AND HOW SHOULD IT BE

IMPLEMENTED? Scope will depend on

type of business involved

Have management team agree on what level is needed

Once level decided, run monitoring software for a week; see what it reveals

WRITTEN MONITORING PLAN Disclosure to employees prior to hiring and

periodically thereafter that all e-mail, voicemail, Internet access and computer files are subject to monitoring

Notify employees that the technology they are provided by the company is company property and is to be used for business purposes

Explain to employees that despite the fact that they are given password to access your system, they should not have an expectation that the system is “private”

Notify employees what, if any, materials they will not be allowed to transport in and out of the company system

Have an agreed upon electronic “document” destruction plan

Reiterate that your non-harassment and non-discrimination policies apply to company email

Notify employees what the penalties for violating the policy are or could be. This should include reprimand, demotion and termination; and

Make sure you get something in writing from your employees to acknowledge receipt of the written policy when issued and if updated