E-mail, voice mail and the Internet: employer liability for employees' acts. (The 2002 Law Journal).

The proliferation of technology has, in many ways, changed the landscape of the workplace. One of the most dramatic is in the rise of employees' use of e-mail, voice mail and the Internet. Increasingly, the interactions of co-workers are shifting from the interpersonal to the virtual. This new communications milieu presents new legal problems.

Imagine the following situation: Susan comes into her supervisor's office, complaining that her work environment is offensive. One of her co-workers has included her on e-mail lists that circulated sexist jokes. Another has left sexually suggestive messages on her voice mail. Finally, several co-workers frequently surf the Internet, occasionally leaving pornographic images on their screens that she has to see as she walks by.

The supervisor immediately investigates the accusations. Unfortunately, Susan has mistakenly deleted the e-mails and voice mails. The supervisor talks with the network administrator, who informs him that the company saves records of employees' usage of the computer and phone systems. The supervisor examines these records and discovers that the male employees have indeed been harassing Susan and, to his dismay, other female employees as well.

Without delay, he fires the offending employees out of fear that failure to do so could serve as adverse evidence in a sexual-harassment lawsuit against the company. Does the company face liability for not having monitored its employees' electronic communications earlier? Do the offending employees have a claim that the company has invaded their privacy by examining their e-mail, voice mail and Internet usage? Sexual harassment liability.

In many ways, legal doctrines designed to accommodate old problems can accommodate new ones. For example, in the case of sexual harassment, there is no analytic difference between the offending employees' use of e-mail, voice mail or the Internet today and a situation 15 years ago wherein the offending employee verbally related the joke to Susan, harassed her in person or posted an offensive picture in his work space. In both scenarios, the pivotal question will be whether the harassment was pervasive enough to give rise to-a hostile work environment.

There is, however, a practical difference between now and then. Plaintiffs can win a sexual-harassment suit against their employers by showing that the company knew, or should-have known, of the harassment yet failed to rectify it: With the rise of new technologies, the evidence of discrimination that 15 years ago would have been a disputed issue of fact is now etched on the company's own computers. The permanence of the evidentiary record can provide plaintiffs with a smoking gun that indicates that the employees and, by proxy, the company itself are liable for the illegal harassment.

To avoid liability because they "should have known" about their employees' alleged harassment, employers are encouraged to root our illegal conduct in the workplace, even if it means regularly monitoring employees' use of computer and phone systems. In fact, statistics show that 78% of businesses monitor their employees' electronic communications, up from 45% just two years ago. Employer monitoring, however, brings us to the next question: Do employees have any privacy rights against their employers?

Privacy concerns

The answer is, probably not. In 1986, Congress enacted the Electronic Communications Privacy Act, which makes it illegal for anyone, even employers, to intercept the communications of another or access the communication while it is in storage. At first glance, then, the ECPA appears to-afford employees protection from snooping employers.

The ECPA, however, has important exceptions that typically swallow the rule. In fact, two common exceptions allow most employers to monitor their employees' e-mail, voice mail and Internet use. First, the "provider exception" allows a supplier of the computer and phone networks to monitor activity on them. If an employer owns the network system, then it can monitor its employees' use of it. Second, the "prior consent exception" allows a third party to monitor communications when a party to the communication consents to it. If an employer obtains employees' waivers of their rights under the ECPA, then it can examine their communications.

Unfortunately, the ECPA is, as one court has put it, "famous (if not infamous) for its lack of clarity." For example, while a "provider" is authorized to inspect its employees' communications, it is unclear whether "provider" includes employers who own employees' computers and local area networks or whether it refers only to Internet service providers. Even if an employer is a "provider," it appears that it must have a legitimate reason to listen to its employee's voice mails. But it is unclear whether the employer has this same limitation with employee e-mail or can monitor all cached e-mails for any reason.

What is an employer to do?

In the face of legal uncertainty, an employer should take a two-pronged approach: fight technology with technology and adopt a clear e-policy.

* Fight technology with technology: There are several technological measures that employers can take to mitigate employee abuse of network systems. First, an employer can install software that will allow it to check all e-mails and Internet sites visited for inappropriate words or phrases. Employees who know that their employer has installed this type of software will be deterred from visiting racy sites and from sending and receiving off-color e-mails. Second, and more effective, an employer can use filtering software for Internet sites or a firewall for e-mails. These devices stop the problem in its tracks: They block employee access to pornographic Web sites and can prohibit the exchange of vulgar e-mails.

* Adopt a clear e-policy: Although the ECPA is murky, its "prior consent" provision is clear: With notice, employees can waive their privacy rights through consent to an employer policy. A policy against inappropriate e-mail, voice mail and Internet use that informs employees they have no privacy rights in their use of these systems not only will deter abuses, it will likely defeat any invasion-of-privacy claims an employee might have under the ECPA. To ensure that employees actually waive their privacy rights, however, the policy should:

* State that the employer owns the computer, phone hardware and network system.

* Tell employees that they have no privacy rights in their use of the computer and phone systems and that all communications on them are company property.

* Warn employees that having a password to their computer or phone does not mean that the employer cannot access their personal mailboxes.

* Inform them that the company reserves the right to review e-mails, voice mail or Internet use. A way to do this, at least with regard to computer usage, is to install pop-up messages that appear when employees open e-mail programs or browsers. They must click "OK" to access the programs, manifesting their consent to the possibility of employer inspection with each use.

* Explain that just because an e-mail or voice message is deleted does not mean that it cannot be recovered and reviewed.

* Notify employees of appropriate and inappropriate usage of company computer and phone systems. Instruct them that company policy prohibits obscene e-mail or voice messages, including racial, sexual or otherwise explicit materials, slurs or harassing comments.

* Finally, and perhaps most important, ensure that they sign an acknowledgment indicating that they have read, reviewed and understand the e-policy.

By adopting a clear e-policy, employers can deter co-worker harassment. By enforcing their e-policies, employers can take an important step towards insulating themselves from liability.

(Recent University of Chicago Law School graduate Josh Dixon assisted in the preparation of this article.)

Patricia L. Holland

Patricia L. Holland is a partner in the Raleigh office of Cranfill, Sumner and Hartzog LLP. A member of the Employment Practices Group, she specializes in defending management in employment litigation. A graduate of Wittenberg University, she received her law degree from Wake Forest University. She is a district bar councilor of the governing body of the State Bar and a director of the North Carolina Association of Defense Attorneys.