Employers Must Consider Liability Risk for Their Employees’ Electronic Communications

Evaluating the impact of electronic communications in today’s workplace, San Diego attorney Janice P. Brown, of Brown Law Group, whose practice specializes in employment law and business litigation, has a few simple works of caution for business owners and employers: beware of the potential risks of liability for the actions of your employees.

Generally, electronic communications includes e-mail, text messaging, and the use of the Internet, each of which are important and efficient business tools that clearly improve productivity yet at the same time post inherent risks when utilized improperly, according to Brown.

Employers have already been held liable for copyright infringement when an employee downloaded copyrighted material from the Internet; for racial discrimination when employees circulated offensive e-mails; and for sexual harassment when employees posted salty comments on an electronic bulletin board. Some cases of employee misconduct have led to claims of retaliation, defamation, misappropriation of trade secrets, computer hacking, evidence tampering, and securities laws violations.

"Failure to adequately monitor employee use of e-mail and other forms of electronic communications presents a threat to the security of the company’s information and potentially opens a Pandora’s Box of potential claims because employers can be liable for the acts of their employees in the course of their employment," Brown explained. The main areas of concern for potential employer liability lie in spreading viruses, confidentiality, copyright infringement, defamation, evidence and disclosure, discrimination and sexual harassment, and pornography. Any discussions contained in documents or messages relating to these categories, for example, can be used in court proceedings in the same way that letters, faxes, recorded conversations, and memos are used.

"In the simplest terms, electronic communications are potentially discoverable documents and are no different than other types of documentation," Brown added. "They can be used for or against a party in litigation as long as all other categories that provide for disclosure are met."

Brown says there are certain steps employers can take to minimized their risk of liability for employees’ misguided actions. First and foremost, they should develop, implement, and enforce a written, company-wide e-mail and Internet use policy. Be sure the policy includes specific restrictions relations to message content, prohibiting those that are defamatory, obscene, profane, or offensive, and that contain copyrighted material, company trade secrets, and confidential information. In addition, include provisions for e-mail retention and system security, particularly password protection and security measures like encryption when sending sensitive documents.

Explain that electronic communications are to be used solely for business purposes and encourage employees to conduct their personal business during off-hours or at home. Consider using filtering software to prevent employee access to certain web sites and monitoring software that searches for specific "red flag" terms used in e-mails.

In addition to including the information in written policy and employment contracts, Brown says it’s also wise to make a formal presentation on the policy information to all staff. Supervisors and managers should be made aware of the importance of early reporting of policy abuses and should closely monitor policy compliance.

Besides concerns over employer liability, the monitoring of electronic communications raises a separate issue relation to employee rights to privacy. Brown says employers must strike a balance between the potential risk employees pose by engaging in questionable electronic communications and their right to privacy, which is limited when communications are conducted on behalf of the employer. The best way to diffuses the privacy issue is to spell out in company policy the employer’s right to monitor employees’ messages.

Also, make employees aware, if they aren’t already, that e-mail and text messages don’t simply disappear into cyber-space when someone clicks the "delete" button. Nothing is further from the truth, Brown said, as electronic messages are often backed up and stored on servers.

"Obviously, the best approach is to avoid engaging in these activities," she said, "but the bottom line is, don’t ever include any information or discussion in electronic communications that could eventually come back to haunt you. And any message has the potential to do that under the right circumstances."

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