E-Mail Monitoring, Notice Policies Save Companies Millions in Suits
Companies must monitor employees’ e-mails and clearly explain why, lawyer Mike Overly told us. “It seems like a bit of a no-brainer to do,” he said: “Every company should have a policy like this, without exception.” The idea is “not to try to lay a trap for employees but to let employees understand why [the employer is] concerned about this,” he said: “The whole idea is to let employees know from the beginning, the e-mail system is for work.” Education and software can save companies millions in suits avoided, he said.
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Software like Red Earth’s Policy Patrol lets employers read, track and even intercept employee e-mails. “It’s very easy to pick these e-mails out,” Red Earth Software COO Deborah Galea told us: It’s a “simple” way to guard companies from suits, trade secret leakage and other problems. Sending personal e-mails and “sifting through” spam can cut employee productivity, Red Earth said in a white paper. Inappropriate e-mails can lead to sexual harassment and other suits that cost companies millions, Red Earth said. Sending copyrighted video clips not only clogs bandwidth but also puts the company at risk of infringement suits.
Policy Patrol can be configured to quarantine e-mails containing brand names, foul language or any other wording, as can products by Seattle Lab and other companies. Companies often use it to screen internal e-mail for “inappropriate” content such as dirty jokes that could harm the company or offend employees, Galea said. “Once a message is intercepted, it’s put into a quarantine where it waits there for someone to review it to decide” to delete it to send it, she said. Policy Patrol can produce a “word score” for each message; an e-mail would have to contain a certain number of verboten terms to land in quarantine, she said. Managers can decide whether to alert the employee sender, but most probably don’t do so automatically, she said. An upgrade set for release soon will send managers or administrators a digest of quarantined e-mails viewable on a “Web console,” she said.
Many companies hesitate to monitor e-mails out of concern about violating privacy, since state laws vary, Overly said. In Cal., employers must notify employees that they're subject to e-mail monitoring, but “in other states, the issue is unclear,” he said. Overly testified in 2000 before the House Judiciary Committee in favor of a federal mandate that employers notify employees of e-mail monitoring policies. The measure fizzled. Several states have such laws; most don’t, he said. But many companies - 70% in a 2006 American Management Assn. survey - voluntarily notify workers they're under scrutiny, he said. Notices must be written clearly -- “not for lawyers, but for the folks” actually being monitored, he said. Overly counsels companies not to “rely on case law” or “implied right” he said: “Be specific.”
E-Policy Exec. Dir. Nancy Foley agreed that “employers could do a much better job, explaining why they are monitoring, what are they looking for and how the technology works.” Foley does corporate training in which she tells workers that e-mail “creates the equivalent of DNA evidence.” Often merely telling workers they're being monitored reduces abuse, she said. “Unfortunately what we find is that employers tend to drop the ball when it comes to effective distribution of policy and employee education,” she said. Foley advises companies to create clear e-mail use policies and support it with monitoring software: “No matter what you invest up front in education and technology tools, it’s not going to compare to what you spend when you're embroiled in a lawsuit.” - Alexis Fabbri