You’ve Got Dangerous Mail: Problem E-Mails Defined

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Being a part of the new electronic media era in today’s business world has provided advances in technology in the way in which employees communicate.

“You’ve got mail” is a welcome greeting to an employee’s business day as one anticipates correspondence from friends and co-workers. Often there is a mixture of business mail and pleasurable jokes from friends who are keeping in touch. However, like many other means of communication, e-mail has become a vehicle for the advancement of improper motives. For instance, harassment in the workplace, for the most part, used to involve one harasser physically confronting a subordinate. Face-to-face contact is no longer a requisite in the age of e-mail and the Internet. Technology has now made it possible for the harasser to effect the same type of harassment through cyberspace.

In the area of employment law, it is well established that employers are liable for the actions of their employees. An employer can be held responsible for the action of its agents or employees in the workplace regardless of his or her knowledge of those acts. More and more employees are filing claims of harassment and discrimination. These lawsuits are becoming de rigueur in California courts. Now, beyond face to face remarks and actions which constitute grounds for harassment and discrimination claims, technology has imposed a new facet of liablility through e-mail and Internet usage.

Employers, especially large companies, have embraced e-mail as an efficient and quick way to promote inter-office communications. With the stroke of a few keys, in a matter of seconds, one memo can reach every person in the office. Unfortunately, new technology can produce new problems. It is now fairly common for most employers to have an e-mail policy. Usually this policy makes it known to the employees that e-mails sent and received on a company e-mail system are not private. Employers have the right to monitor e-mail usage and computer files of their employees just as they do with telephone usage.

In an attempt to protect employees’ privacy rights, Senate Bill Number 1016 was proposed. This bill outlined a statute requiring employers to distribute to all their employees the employer’s practices and policies regarding e-mail use and stored electronic records and files. It also required that each employee sign and acknowledge that the practices and policies information was read and understood. In October of 1999, Governor Gray Davis vetoed Senate Bill Number 1016, reasoning that employees inherently know that equipment and software provided by the employer is to be utilized for work and may be monitored. Further, there is a legitimate need for an employer to monitor computer and e-mail files of its employees as employers are potentially held liable for their employees’ use of the same, and this bill placed a greater burden on employers than necessary.

As apparent in Governor Davis’ reasoning for vetoing Senate Bill Number 1016, there is no reasonable expectation of privacy on the part of the employee in e-mail which is originated, stored or received at work. However, what the courts have not ruled upon is the issue of the use of Internet or external e-mail as compared to internal e-mail (which is only available on a network in the office). Most of the cases of sexual harassment or discrimination in the employment arena have dealt with the sending of offensive messages via internal e-mail which the employer is responsible and liable for. The courts have not ruled whether an employer would be liable for any offensive e-mail sent by an employee through his or her own Internet e-mail account to another employee through the computer provided at work. Although the computer is provided by the employer, the e-mail account is external storage, not accessible to the employer. The Electronic Communications Privacy Act (ECPA) is a federal statute that protects the privacy interests of stored electronic information. An employer who intentionally accesses without authorization any electronic communication while it is in electronic storage in such a system is punishable under federal law. In this scenario, it would be impossible to monitor the offending employee’s e-mail usage through the company-provided computer and Internet access.

With technology expanding, the difficulties in maintaining a safe working environment grow along with it. As an example, in the area of sexual harassment of discrimination in the employment law context, one basis for liability for the employer is the creation of a “hostile working environment.” A hostile working environment is created when the employee is subjected to unwelcome conduct based upon sex or race or age or national origin and is severe or pervasive enough to alter the work environment, creating an abusive working environment. A recent New York case held that the transmission of two insensitive jokes over the company e-mail system, which were not directly sent to the complaining employees, did not create a hostile working environment. One or two isolated e-mails with offensive content does not arise to the level of pervasiveness needed to create an abusive working environment, but repeated conduct probably could.

Offensive e-mail does not have to be sent directly or intentionally to the complaining party to create a hostile working environment. Oftentimes, email is inadvertently sent to an unintentional recipient due to an erroneous stroke on the keyboard or highlighting the wrong group list. The end result is the same as the employee may find the content of the message offensive. Also, many pornographic pictures and animated cartoons are available through the Internet and downloaded onto computer screens. When an employee does this and the images are displayed on a screen in plain sight of any person walking by, a sexual hostile working environment without any intention to offend anyone is created.

There are thousands of possibilities and scenarios that e-mail and the Internet have created which may constitute harassment and discrimination. Today’s employers who utilize new technology must become savvy in finding ways to protect themselves from possible exposure. It is a good idea to have a written policy and procedure regarding e-mail and Internet usage at work, and to frequently update them to change with technology. Frequent e-mails to employees, reminding them of the company policies and procedures on monitoring e-mail and computer files, is also a positive way in which the employer can help to create a safe working environment free of harassment and discrimination. Employers should also actively encourage employees to report any harassment or discrimination to prevent a pervasive, abusive environment. What is also very important is what the employer does after he or she discovers any improper use of e-mail or the Internet by the offending employee. Quick, prompt action usually will limit the employer’s liability in these types of cases.

As Managing Partner at Hillsinger & Costanzo, I have personally come across human resources issues which, if not handled immediately, could be potentially problematic. For example, one employee against company policy had been viewing a pornographic site on the Internet. Another employee who had legitimate research to do, had the log come up from the previous employee and was confronted by the pornographic web site. On another occasion, an employee inadvertently sent an inappropriate e-mail joke to his female supervisor by accidentally pressing the wrong keyboard key.

Although many employers or companies feel that their employees would never conduct themselves in a manner which would subject them to claims of sex, race, age or national origin discrimination, it is good practice to utilize and implement written policies and procedures guarding against harassment and discrimination in the workplace. The investment of creating strong policies and open communication of these policies will most probably help the company avoid the costs of litigation down the road.

Thomas C. Hurrell is Managing Partner at HILLSINGER & COSTANZO. Mr. Hurrell specializes in human resourses related issues in addition to his experience in the defense of medical malpractice, and products liabilities litigation.

Tracy Wei Costantino is alos an attorney at HILLSINGER & COSTANZO, specializing in employment law, civil rights cases and medical malpractice litigation.

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