Employees’ Emails Highlight the Importance of Effective Policies
by Greg McAllister and Dave Wishnew
Employees who use email at work often incur (or narrowly avoid) liability for themselves and employers. Recent cases highlight the effects of employees’ ill-advised email usage and demonstrate the need for policies that anticipate employee misuse of email and future litigation.
Recent Close Calls for Employers
Employers face challenges when more than one employee views an employee’s email. In many businesses, assistants review their boss’s email. One assistant complained because her boss’s email repeatedly included pornography. The employer escaped liability when the assistant’s Texas Workforce Commission charge was untimely. . The employer was fortunate that this embarrassing situation did not also result in lengthy and costly litigation.
In a New Jersey case, an employee viewed, opened, printed and distributed his co-worker’s email that was left open on a shared work computer. The co-worker and the owners of the other addressees on the distributed emails sued. The defendant avoided liability under New Jersey law after the plaintiffs were unable to meet a statutory requirement that the defendant acted “without authorization” or exceeded his authorization. This outcome may have turned out differently under slightly different circumstances, a different jury, or another states’ laws.
Using Former Employees’ Emails
Employers often utilize former employees’ improper emails in litigation. In an Illinois case, an employee sued her employer based in part on PowerPoint pictures of a supervisor wearing overalls with no shirt underneath, a hard hat, tool belt and shoes. The court dismissed in part because the plaintiff emailed images that were more sexual in nature. The former employee could not “make a claim that [the PowerPoint] photographs were subjectively sexually offensive in that her own work email account contained pictures of males wearing far less clothing, one of which contained a photograph showing the full buttocks of a male, which she found humorous and even forwarded to her own daughter.” Jacober v. U.S. Dep’t of Agric. Agency).
Employees often email themselves client lists and other confidential information before going to work for a competitor. For example, an Ohio employee—during the two weeks before her resignation—uncharacteristically sent work emails to her personal email. Shortly thereafter, she went to work for a competitor. Not surprisingly, the former employer discovered the truth. The emails were key evidence that enabled the employer to obtain injunctive relief..
Public Employees’ Emails Face Scrutiny
After an open records request and investigation, a New Hampshire county prosecutor was confronted with emails discussing his fantasy football league. He resigned. New Hampshire’s attorney general decided not to press charges after an investigation into allegations of illegal gambling.
Lessons for Employers and Employees
These examples provide lessons for employers. First, policies should clearly communicate that employees should not expect privacy on their work email because the email addresses are company property. Employers should also instruct employees through manuals and training that personal use of work email is discouraged and limited by a code of conduct. Additionally, employers should articulate a clear policy of how the company preserves and destroys email data.
Policies and practices should be tailored to each business. If secretaries view managers’ emails, the managers should be especially cognizant of personal content and confidential information. Additional policies and training may be required when employers allow shared computers in the workplace. More unique concerns arise for public employees subject to potential open records requests, including requests by political opponents.
Finally, employers should require new employees to verify that they are not bringing confidential information from previous employers. Confidential information and contact lists from previous employers could subject individuals and their new employers to liability. Likewise, employers in highly competitive industries should be prepared to review departing employees’ email to anticipate employees taking client lists and confidential information.
Employers and employees alike should always remember that today’s improper or offensive email may be tomorrow’s evidence.