When E-Mail Puts You at Risk

When E-Mail Is a Liability

An employer without a solid e-mail policy is at risk of being sued, both by its own employees and by outsiders, says attorney Overly.

E-mail can be used as evidence in cases claiming sexual harassment, discrimination of all sorts, or hostile work environments. But if an employer goes too far in the direction of reading employees' e-mail, in an effort to prevent this kind of liability, it could also be sued by employees for invasion of privacy. Furthermore, third parties can sue a company for what its employees do using e-mail, including sending copyrighted documents without permission, libeling another company, or violating antispam laws.

"Any kind of liability that an employee can create through communication, they can do through e-mail," Bruce says.

Overly says that many problems can be prevented by a solid policy that spells out the company's right to read employees' e-mail when necessary.

"Employers must have the ability to review everything on their computer systems to make sure that there's no illegal activity being conducted," Overly says. "If someone conducts criminal activity using an e-mail system, unknown to the company, the company's e-mail system can be subject to seizure. Or an employer may be sued in a breach of contract case. As part of that they're going to have to go through a lot of employee e-mail."

Even if no one has done anything illegal, it is sometimes necessary to go through an employee's e-mail for other reasons, such as to retrieve crucial documents if they are unexpectedly absent.

"Can employees sue for invasion of privacy?" Overly says. "The general rule is that if an employer has a clearly written e-mail policy that says the employee has no expectation of privacy, the employer will probably be safe."

Deflaming the Business?

An e-mail policy can also help ensure that private information remain that way.

"It's so easy to send information with e-mail," Overly says. This includes, of course, information that a company may not want sent anywhere, such as the strategic plan for the next product release. The ease of forwarding messages and using mailing lists means that employees may inadvertently send sensitive information outside of the company.

A good policy will caution employees to be careful about what they send outside the company--both to make sure there's no confidential information and to be sure they know that whenever they send e-mail message outside of the company, they are in effect representing the company.