Before You Hit Send: Three Ethical Myths about Company Policies and E-mail

You don’t have to go far to see that things are happening in the workplace and around us every day that are causing some folks distress. I’m not talking about layoffs or downsizing, but the office politics or day-to-day workings in an office. As I was doing some recent research, I discovered that employees don’t really know much about their rights within organizations. The real truth is being hidden from employees with “little fine print” or lack thereof. If you want to be able to face today’s ethical challenges, beware of these three myths.

Myth 1: I can use my personal e-mail and social networks on my company computer.

Fact: The ability to control what information one reveals about oneself over the Internet, and who can access that information, has become a growing concern. These concerns include whether e-mail can be stored or read by third parties without consent, or whether third parties can track the web sites someone has visited.

Electronic media (E-everything) has become the predominant method of communication in the workplace…“click” and “send”. These tools can enhance productivity and speed business developments; however, the immediate availability and impersonal nature can also lead employees to send and say things over an e-mail system that in years past would only have thought to themselves. With the high volume of communications transmitted via e mail, the employee needs to know that their E-everything is being monitored—probably by someone who was hired exclusively for this purpose. Employees who have abused the employer’s computers and Internet systems with offensive emails, instant messages (IMs), or the like have been subjected to disciplinary actions, including termination.

In 1986, the U.S. Electronic Communications Privacy Act (ECPA) was instituted. The ECPA “prohibits the intentional or willful interception, accession, disclosure, or use of one’s electronic communication,” such as e-mail. Nevertheless, as with any good thing, three exceptions limit its applicability to employer monitoring:

• the provider exception
• the ordinary course of business exception
• the consent exception.

Most employers justify monitoring employee e-mail via the first and third exceptions. For example, employers who provide their employees with e-mail service through a company-owned system are exempt from the ECPA under the “provider exception.” It should be noted, however, that private employers may not be protected under the ECPA if they use a third-party service provider.

The “consent exception” applies when “one party to the communication has given prior consent, actual or implied, to the interception or accession of the communication.” Employees will be deemed to have consented to e-mail monitoring by their continued use of an employer’s e-mail system or computer after being informed of a monitoring policy with regard to e-mail.

Here is a scenario:

A pregnant female employee who was working in the city manager’s office was told that she would not be promoted due to an undocumented hiring “freeze.” However, the plaintiff presented evidence challenging that justification—an instant message communication sent, when the alleged hiring freeze already was in place, reflecting the employer’s desire to promote someone other than the plaintiff and asking for recommendations. Based on this e-mail and other evidence at trial, the court found that a jury might reasonably conclude that the plaintiff’s gender and/or pregnancy were motivating factors in the city’s decision not to promote her.

Myth 2: All company policies and codes of conduct are the same. I do not have to read them, just sign them.

Fact: So often, employees begin working at an organization and they are given the employee handbook and told they will need to sign to certify and/or acknowledge that they have read the policies contained within. This acknowledgement signifies that, by signing the form, you have read and understood the company’s rules and consequences of violation. Reviewing a policy is more than just reading and understanding; it involves asking questions for clarification.

Excited and anxious to start working for XYZ Company, the employee signs the form after casually glancing through the book. The typical employee has worked at other organizations and will blindly feel they know the “Do’s and Don’ts”. It is not until something goes wrong that an employee begins to hurriedly search for the policy and procedure manual to understand their rights.

Here is a scenario:

A recent college graduate accepts her first role as a pharmaceutical representative for a top pharmaceutical company. Prior to her first day of reporting, her manager contacted her and notified her that on the evening of her first day at work, she would be required to travel out of town to attend the new representative training for two days. The company would be issuing her an American Express credit card to cover her expenses, while ensuring her flight and hotel accommodations were paid. Excited about her new position, the employee gladly agrees to travel. Upon returning to the company after training, her manager calls her in the office and a representative from HR is seated in the room.

The manager informs the new associate that her employment at the company has been terminated. Disoriented and confused, the employee asks the reasons for termination. The manager explains the company policy regarding corporate card use, which the new representative had signed the first day. Specifically, the rules state that employees are forbidden from taking cash advances on the corporate card. The new rep tried to explain the reasons for the cash advance (to make ends meet until her first paycheck). Needless to say, the new representative left the company after four days of employment.

Additionally, each year an organization may (or should) ask for re-certification of all employees to be sure they understand the company policies and/or code of conduct and address any changes or concerns. The employees will again sign the form, thinking they know the policies. These acknowledgements typically state that if you do not understand a policy, or if you have questions, to speak with your supervisor or line manager. Employees reluctantly recertify for one of several reasons:

• They don’t want to question the policy and draw attention to themselves.
• They don’t think their supervisor/line manager knows any more about the policies than they do.
• They, like many others, feel the rules are irrelevant and issues the rules address will not likely directly affect them, contingent upon good work performance or “common sense.”

Myth 3: It’s okay if my co-workers send out sexually-explicit or dirty joke e-mails and texts.

Fact: Time and time again in today’s workplace, company e-mail is commonly used by employees to transmit jokes, pictures, communications regarding side businesses or personal artistic endeavors, gossip, humor, rumors, and romantic or pornographic content—some of which may be offensive, hostile, discriminatory, or worse. Although a single sexually suggestive comment or joke might offend someone and/or be inappropriate, it may not be sexual harassment. However, a number of relatively minor separate incidents may add up to sexual harassment if the incidents affect the work environment.

In 2006, Congress enacted electronic discovery amendments to the Federal Rules of Civil Procedure (E-Discovery law).

Employers are now being told to implement policies regarding the retention of electronically stored information to avoid being sanctioned for discovery abuses. Electronic discovery refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case. The nature of digital data like e-mail makes it extremely well- suited to investigation because it can be electronically searched with ease. It is also difficult or impossible to completely destroy, particularly if e-mail is sent over a network. Employers now have a duty to preserve potentially discoverable documents, such as e-mails.

Here is the scenario:

A police officer was allegedly disciplined following his employer’s discovery of many personal (and sometimes sexual) text messages sent from his work-issued pager. The nature and frequency of the text messages were discovered during an investigation to determine why the officer had repeatedly exceeded the monthly text character limit. During that investigation, the city reviewed transcripts of the officer’s messages for a period of two months. The city asserted the investigation was not motivated by a need to uncover wrongdoing, but rather to determine the appropriateness of the character limit (i.e., was the character limit too low to accommodate work-related messages, or were the overages due to personal use). The officer alleged this as a violation of his Fourth Amendment rights and those with whom he had been communicating and sued the city. The District Court held that employees can have reasonable expectation of privacy as to the content of the messages but that, in light of the motivation for the search, namely to determine the efficacy of the text character limits, the search was reasonable and did not violate the Fourth Amendment. On appeal, the Ninth Circuit reversed in part and held that the search was not reasonable in scope and thus violated the Fourth Amendment.

The US Supreme Court recently addressed this case regarding whether a government employer’s search through an employee’s text messages, sent and received on a work-issued pager, violated the Fourth Amendment. The Court found that the search was reasonable and that the employee’s Fourth Amendment rights were not violated.

The Court held that the search was justified because “there were ‘reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose,” namely to determine the sufficiency of the character limit on text messages.

The Court further held that the extent of the search was reasonable “because it was an efficient and advantageous way to determine whether the officer’s overages were the result of work-related messaging or personal use” and because the review was not “excessively intrusive.” Accordingly, the search did not infringe on his Fourth Amendment rights. Additionally, the Court held the rights of those with whom the police officer was communicating were not violated.

The take-away message is: Know your company’s policies and code of conduct. Ask questions and be informed.

Photo Credit

“Work email?” adonis hunter @ flickr.com. Creative Commons. Some Rights Reserved.

“Control is an Option to Command” Fred Cintra @ Flickr.com. Creative Commons. Some Rights Reserved.

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