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EMPLOYEE USE OF
COMPANY E-MAIL
MONITORING &
PRIVACY ISSUES
TECHNOLOGY ISSUES-OF-THE-DAY
80s – Proliferation of the
PC
90s – Internet
00s – 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
BACKGROUND
 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
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, email 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 email 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 harassment
Discrimination
Anonymous web posting (trade secrets & defamation)
Harm to 3rd parties
Discovery 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 MONITOR
 Failure 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 nondiscrimination 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

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