Delaware Employment Law Blog

Can I read my employees' e-mails? Labor and employment attorneys get this question often. It's not as common, though, that the possible cyber-sleuth is a co-worker rather than a member of management. Recent drama at the news desk of Philadelphia's CBS 3 fits this unusual profile. 

The First of the Fallen Anchors

Long-time CBS news anchor, Larry Mendte, is under federal investigation.  He is suspected of reading the e-mails of former co-anchor, Alycia Lane.  After Lane was involved in several scandals of her own, her employment contract was terminated after she allegedly assaulted a plain-clothes police officer in New York City, and using a homophobic slur. See my earlier post, Bad Boys, Bad Boys, Whatcha’ Gonna Do When They Work for You?, for more details on the Alycia Lane scandal.

The Cyber-Scandal Spreads

And now attention has been turned to Lane's former colleague, Larry Mendte.  Late last week, Mendte and CBS News learned that he was being being investigated for snooping through Lane's e-mail.  Reading others' e-mails without permission or privilege is a federal crime.  (Last week we discussed Delaware's state law, which requires employers to provide written notice of their intent to monitor employees' e-mails.  See Employers' Policies on Technology in the Workplace).

Mendte's home computer was seized by the FBI as part of the probate.  CBS 3 issued the following statement yesterday:

Late last week, CBS 3 became aware of an investigation by the U.S. Attorney's Office regarding anchor Larry Mendte. CBS 3 is cooperating fully with that office in this matter. Mr. Mendte will not be on CBS 3's broadcasts pending further investigation.

While the investigation is ongoing, Mendte has been dethroned. It doesn't seem so positive.  Mendte's lawyer said yesterday, "We hope to work together with CBS 3 to reach a mutually agreeable resolution as to his status." 

That does not sound good.

Get Consent to Monitor Employees' E-Mails or Risk a Mendte-Style Result

Let this be a word of warning to any employer who may be inclined to search their employees' e-mails without complying with state and federal notice requirements.  Cyber-sleuthing has serious consequences.

And if you learn that another employee has been snooping through a co-workers electronic data, including e-mails, act quickly and seriously.  Take a page from CBS 3 and consider suspending the employee until your investigation is complete.

Employers know that e-mail between employees can be dangerous.  Employers know that the Internet can all but eliminate the productivity of their employees.  But what do employers know about Instant Messaging, weblogs, chat rooms, and wikis?  And, more importantly, what are they doing about it? HR Hero's survey gives some insight into the answers to these questions.

Survey Says . . .

HR Hero has released the results an interesting survey on policies (or lack thereof) for workplace technology.  There is a link to the full survey below but here are some highlights:

Policies for Technology Use.  Not surprisingly, most employers (89%) have policies both on employees' internet and e-mail usage.  What was surprising, to me anyway, is that there are still employers (5%) with essentially no policies on workplace technology.

E-mail Usage Policies.  Only a fraction of respondents (3%), did not put any limits on employees' use of the company's e-mail  systems.  Nearly all (80%) have policies expressly prohibiting inappropriate e-mails.  And more than half (61%) permit personal e-mail so long as it is not excessive.  A surprisingly large number (34%), of employers do not permit employees to send any personal e-mails.

Internet Usage Policies.  Like e-mail policies, nearly all employers (82%) prohibit employees from visiting websites.  28% of employers limit employees' internet access to approved websites only.  A small number of employers had either no internet usage policy at all (3%) or put no limitations on usage (3%).

Internet & E-Mail Monitoring Policies.  Just over half (58%) of employers that responded monitor internet use but only if they suspect abuse.  Almost the same amount (61%) did the same for e-mail.  Less than one-fifth of respondents regularly monitor e-mail use (19%) but internet monitoring seems to be more common (27%).

Blogging.  Most employers have not started to use blogs as part of their business activity.  Of those who have (12%), approximately equal numbers are putting blogs to work as part of their marketing (4%), and public relations (3%), efforts.  Others are blogging to communicate both internally within the company (3%), and externally with clients (1%). 

The entire survey, Technology and HR 2008, can be seen at the HR Hero website.

Special Note for Delaware Employers

Delaware employers should be aware that state law mandates that notice be given before monitoring employees' internet or e-mail usage. The law is specific in the way that notice must be given.  Although there are alternatives, the most common way is with a written consent form signed by each employee.

For more information on how to comply with Delaware's internet and e-mail monitoring law, contact any of the attorneys in YCST's Employment Law Department.

Among Delaware employers and in the world of employment law nationally, there has been much talk about Web 2.0 and the power of social networking tools.  Delaware businesses, like employers across the country, are worried about what is being said about them online.  They should be.

Many of you already know about the impact weblogs and online social networks can have on a business.  Of course, these impacts can be both good and bad. If it were all bad, I wouldn't be blogging on our department's firm-sponsored blog.  Many businesses have begun to embrace these new mediums to reach a broader audience. They've turned to social networking to communicate with a broader audience in an effort to maximize exposure to their products, their message, or their brand.

Other businesses have felt first-hand the negative impact of Web 2.0 communications.  For example, some companies felt massive financial reverberations because a popular blogger posted about his or her negative experience with the company's product or services.  The comments can spread uncontrollably on the web and employers are left without any real recourse. 

Another common scenario involves blogging employees.  With the explosion of the blogosphere, employees have taken to the web to share their personal stories of triumph and tragedy.  Sometimes their stories include not-so-nice commentary about their workplace. The employer is put into a very difficult situation.  If they terminate the blogger, they may be able to at least cut off the blogger's supply of "material" that can be put online.  But termination is not without risk. The terminated employee may respond with more hostile posts than ever before.  And, as newly unemployed, the blogger has plenty of time on his hands to post, and post, and post.

So what to do? We counsel our employment-law clients to institute a blogging policy if they haven't done so already. This is not to say that, as employment lawyers, we advocate for a flat-out ban on employee blogging.  But, at the very least, there should be a policy in place providing that any employee whose blog posts include the company's confidential information or trade secrets, will be subject to discipline, up to and including termination.

A different approach used by some employers could be described as the, "If you can't beat 'em, join 'em policy."  Some companies may go so far as to hire a Chief Blogger In Residence.  The CBR's job is to post like crazy about the positive aspects of the company, its employees, or its products. The Chief Blogger also scans the web to monitor what others are saying and provide an appropriate response. 

Given the cost, CBRs are not exactly commonplace.,  As an alternative, an employer can use online notification tools like Google Alerts, which will search the web for your company's name. When new "hits" are discovered, you recieve an e-mail alert with a link to the site where the company's name was found.  Searching for yourself or your company is known as a "reputation search."

There is now a new product designed to do conduct "professional" reputation searches.  Trackur promotes itself as an "online reputation monitoring and brand tracking tool.  It has been described as "Google Alerts on steroids," according to the Trackur website.  And what makes this pay-for-play, subscription-based tool better than the free Google one?   Having not tried it myself, I'll leave it up to you to decide. 

The plans are not cheap.  A monthly subscription to have just one search saved and run twice daily is $18 per month.  Jump to 5 saved searches and you're up to $88 per month.  I have no experience with Trackur so I can't say what value it actually has.  But even if Trackur isn't met with fabulous success, I'd be willing to wager that similar monitoring tools are not far behind.  Any employer concerned with what its employees are saying about the company, and any business concerned with its online reputation would have good reason to consider an "online reputation-monitoring tool."

***Prior posts on blogging include: Blogs In the Workplace and Somebody’s Watching You: New Data on Employers' Electronic Monitoring

Delaware businesses must have a written electronic-monitoring policy if they want to monitor phone, e-mail, or computer usage by employees. Delaware law requires employers to get either a signed consent from employees or to have a message conveying the policy that is shown to the employee each time he logs on to the computer. And even in states without such laws, unless you have a written policy that communicated to employees, you stand to risk a privacy claim. The key is to ensure that your employees do not have a "legitimate expectation of privacy" in their use of your electronic systems.

And that's where your policy comes in. Current is the key. The modern trend in electronic-communications policies has been to include provisions specific to blogging, cell-phones, and text messaging. We often counsel clients to improve their policies to reflect the state of technology. It seems that we have a lot in common with the Mayor of Detroit, Maybe Kwame Kilkpatrick.

Mayor Kilpatrick has implemented a new policy that text messages sent on city-owned devices are considered private. As you may recall, Kilpatrick and his ex-top aide face perjury charges for testimony they gave during a whistleblowers' trial that they didn't have a romantic relationship. Sexually explicit text messages have contradicted that testimony. Kilpatrick's lawyers say federal law protects the release of such communications. The policy began Thursday, April 16, 2008.

Past policy had been that electronic communications were public. The mayor's office said in a statement Thursday that city policies are always subject to change. Hmmm. I suppose that employers might want to ensure privacy in electronic communications is preserved instead of eliminated Especially if they have something to keep very private.

Go to source web page: Crain's Detroit Business

The American Management Association (AMA) and The ePolicy Institute have recently released the results of their survey on Electronic Monitoring & Surveillance. The survey is of great interest to employers, who face more and more issues in this area.

Some highlights from the survey:

E-Mail and Internet-Related Terminations:

The 28% of employers who have terminated employees for e-mail misuse did so for the following reasons: violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Internet, E-Mail, Blogs and Social Networking:

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully
65% of companies use software to block connections to inappropriate websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

Computer monitoring takes many forms, with 45% of employers tracking content, keystrokes, and time spent at the keyboard. Another 43% store and review computer files. In addition, 12% monitor the blogosphere to see what is being written about the company, and another 10% monitor social networking sites.

Of the 43% of companies that monitor e-mail, 73% use technology tools to automatically monitor e-mail and 40% assign an individual to manually read and review e-mail.

Telephone and Voice Mail:

Six percent of employers have fired employees for misuse or private use of office phones. Fully 45% monitor time spent and numbers called, and another 16% record phone conversations. An additional 9% monitor employees’ voicemail messages. Most employers notify employees of phone (84%) and voicemail (73%) monitoring.

Video Surveillance:

Almost half (48%) of the companies surveyed use video monitoring to counter theft, violence and sabotage. Only 7% use video surveillance to track employees’ on-the-job performance. Most employers notify employees of anti-theft video surveillance (78%) and performance-related video monitoring (89%).

Global Satellite Positioning and Emerging Surveillance Technology:

Employers who use Assisted Global Positioning or Global Positioning Systems satellite technology are in the minority, with only 8% using GPS to track company vehicles; 3% using GPS to monitor cell phones; and fewer than 1% using GPS to monitor employee ID/Smartcards. The majority (52%) of companies employ Smartcard technology to control physical security and access to buildings and data centers. Trailing far behind is the use of technology that enables fingerprint scans (2%), facial recognition (0.4%) and iris scans (0.4%).