Managing the Risk of Worker

E-Mail and Blog Misuse Kelly Savage, Esq.

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Today, you’ll learn how to prevent misuse of your company’s technology resources and how to protect your business from legal liability for employee misuse of e-mail, blogs and the Internet.• What is the problem

• How big is it

• What are the risks to your company

• What can employers do to protect themselves

• How do employers handle misuse

• End goal: employers and companies will have an increased awareness of potential problems and learn to reduce risk of legal liability for employees’ misuse of company e-mail and the Internet

What is the Problem and How Big is It?

• More than 25 percent of employers have fired workers for misuse of e-mail

• One third of employers have fired an employee for misuse of the Internet

• More than 50 percent of employers have disciplined an employee for violating e-mail policies

The Problem is Growing:

• Companies estimate that more than 1 in every 5 outgoing e-mails contains content that poses a legal, financial or regulatory risk

• Twenty percent of companies have disciplined an employee for violating blog or message board policies in the last year and nearly 10 percent have fired an employee for such an infraction

• More than 10 percent of public companies investigated the exposure of material financial information via a blog or message board in the last year

Why Should Employers Monitor E-mail and Internet Use?

• To reduce the risk of legal liability

• To protect assets

• To prevent the loss of productivity

• To minimize negative publicity

Employee Technology Use Can Expose Employers to Risk:• Divulgence of trade secrets, confidential information or proprietary

information

• Hostile work environment or discrimination

• Disclosure of non-public information that can subject employer to liability under securities laws

• Copyright and trademark infringement

• Breach of privacy

• Harm to company’s reputation

Nearly a quarter of businesses have had e-mail subpoenaed by courts.

Fifteen percent of companies have faced

lawsuits based on employee e-mail.

“Workers’ e-mail, IM, blog and Internet content creates written business records that are the business equivalent of DNA evidence.”

E-Mail and Internet Use and Abuse in the Workplace

• More than 60 million Americans have e-mail and/or Internet access at work

• In a recent survey, 70 percent of workers admitted to viewing or sending sexually explicit e-mail at work

• Most traffic to Internet pornographic sites occurs during regular business hours, probably because Internet connections are usually faster in the workplace

Are these Your Employees?

E-Mail and Internet Use and Abuse in the Workplace

• According to a survey by America Online and Salary.com, the average worker admits to squandering away 2.09 hours per 8-hour workday

• Sixty percent of employees admit having exchanged e-mail that could be considered racist, sexist or otherwise “politically incorrect”

How Employees Misuse E-mail:

• Doe v. XYC• Chevron Oil Company was forced to pay $2.2

million to settle a sexual harassment lawsuit brought by a group of employees alleging that Chevron allowed its internal e-mail system to be used to disseminate sexually offense content, including the account of the “25 Reasons Why Beer is Better than Women.”

Hypothetical Question No. 1

Hypothetical Question No. 2

Blogs• “Blog” is short for “web log,” a specialized website where

individuals can post their thoughts

• More than 175,000 blogs are created everyday

• But less than half of employers have blogging policies

• When a blogger has been fired because of material appearing in an Internet blog, the employee has been “dooced”

• According to some reports, millions of employees spend work time reading blogs not related to company business, representing estimated losses of nearly 10 percent of the work week

How Employees Misuse Blogs:

• Two former employees posted more than 13,000 uncomplimentary, often defamatory (according to the jury) messages on 100 blogs concerning their former employer. They vowed to “continue posting until they died.”

• A Delta flight attendant was fired for posting suggestive photographs of herself in her Delta uniform on her personal blog.

• The Automobile Club of Southern California fired 27 employees for posting comments about the weight and sexual orientation of fellow employees on a popular social networking website.

Hypothetical Question No. 3

Hypothetical Question No. 4

Instant Messaging:

• Instant messaging allows two Internet users to engage in a real time e-conversation. These IM conversations are normally recorded by both the ISP and the users’ hard drive.

• On a typical day, users will send about 7 billion instant messages.

• Two percent of employers in a recent survey reported firing employees for inappropriate instant messages.

Other Technology:

• Web pages

• Text messaging devices

• Camera phones

• PDAs

• GPS

• Listservs

Hypothetical Question No.5

What Can Companies Do to Protect Themselves?

• Implement and publish policies to monitor company e-mail and Internet use

• Implement a monitoring system and consider

using technology to block employee access to websites that are offensive or unrelated to work

• Respond quickly and consistently when inappropriate use is discovered

Prevention:• Employers have a duty to prevent certain kinds of inappropriate

use of company resources. Factors influencing employer liability often include whether the employer knew or should have known about the problem, the status of the employee, and the employer’s response once informed.

• If a policy is implemented to govern activities on company-owned electronic communication tools—from blogging to Internet chatting—employee discipline or discharge for violation of a clear policy is usually defensible.

E-Mail Policies

• Written employee policies prevent potential problems and can greatly aid in a legal defense against employees

• Policy should be in writing and be distributed to all employees, preferably when employment commences

• When the policy is presented to new employees, he or she should be required to sign an acknowledgment of receipt of the policy, which should be placed in the employee’s personnel file

• Rules on usage of the e-mail system and the Internet

E-Mail Policies

• Employee cautioned that the Internet is neither a secure or private environment and may be accessed by non-employees

• Employee acknowledges there is no expectation of privacy in employee Internet and e-mail communications

• Employee consents to employer monitoring, tracking and review of all employer communications including all information stored, created and disseminated using the employer’s computer and network systems and information viewed, downloaded, copied, sent or processed using the employer’s computer and network systems

E-Mail Policies• Authorized use of the Internet and e-mail by the employee is restricted to business communications and limited

personal use

• Unauthorized or prohibited use includes the following types of communications

– fraud

– harassment and/or intimidation

– sexually explicit or obscene

– political

– gambling

– commercial

– employer and confidential trade secret information

– offensive to race, gender, disability, age, religion or other characteristics prohibited under federal, state or local

law

E-Mail Policies

• Employees prohibited from sending or posting messages that contain objectionable or abusive language, that defame or libel others, or that infringes on privacy rights of others

• Employees prohibited from viewing, downloading, copying, sending, posting or accessing information that is illegal, sexually explicit or obscene

• Employees prohibited from engaging in acts that damage, interfere with, or congest the employer’s computer or network systems or interfere with the work of other employees or others

E-Mail Policies

• Employees prohibited from using the Internet or e-mail to solicit others, including for commercial or charitable purposes

• Employees prohibited from using the Internet to e-mail to proselytize for religion, political or other causes

• Employees prohibited from posting messages to electronic bulletin boards, list-servers or similar public posting forums on the Internet without the written permission of the employer

• Employees agree to maintain the confidentiality of attorney-client employer communications

E-Mail Policies

• Employee is required, and agrees, to comply with all laws, regulations and rules including intellectual property including but not limited to: (1) copyrighted material; (2) licenses, including software and shareware; and (3) trade and service marks

• Employee agrees to maintain the secrecy of all passwords, identification numbers or other means of entry onto the employer’s computer systems and networks, and acknowledges that the employer is the holder of all passwords, identification numbers, and other means of entry, and that the employee will use no other passwords, identification numbers and other means of entry

E-Mail Policies

• Employees agree that they are liable for all transactions using their password and identification numbers

• Employees are required to maintain and not deactivate provided virus, spyware and avoidance or other software including encryption software

• Employer, at its discretion, monitors employee Internet and e-mail use

• Employer, at its discretion, tracks employee Internet and e-mail use

E-Mail Policies

• Employees are informed that backup files exist within the employer’s database systems and can be retrieved by a plaintiff choosing to file a lawsuit against either the employer or the employee

• Policy will be updated annually and employees agree to comply with this and all future policies

• Employees acknowledge any conduct that violates policy may result in disciplinary action up to and including termination

• Employees have read and understand policy and agrees to follow policy and instructions

Blog Policies:• Policy should make clear that it covers communications about the

company that occur both on and off the job

• Restrictions on misrepresenting opinions and positions on behalf of the company should also be clear

• Zero tolerance on inappropriate communication as well as disclosure of confidential information and trade secrets

Monitoring Systems

• Monitoring software

• Monitoring by network administrator

• Random Monitoring

E-Mail Monitoring and Enforcement of Policies

• Internet use policy must be strictly enforced to provide a shield against liability for the employer

• Consider installing a log-on screen or message that notifies the employee each time he or she turns on the computer or clicks on an Internet browser that the employee’s use of the computer and Internet is subject to and governed by employer’s Internet use policies

Is e-mail and Internet monitoring legal?

What are the Legal Risks Associated With Monitoring?

Employee lawsuits:

• Intrusion upon seclusion or invasion of privacy

• Violation of the Electronic Communications Privacy Act

• Violation of the Stored Communications Act

What if I an Employee Violates the Company Policy?

• Employers may discipline or terminate an employee for misuse of e-mail, the Internet, and other technology, subject to few exceptions

• Consult an attorney before you act

How Do I Remove Offending Materials from the Internet?• Contact corporate counsel

• Identify the source and IP address where the offending material is located

• Raise the issue with the site owner and insist they remove the material

• If they refuse, raise the issue with the Internet Service Provider (ISP) providing the service space for the website

• You can locate the ISP by performing a search on the IP address at http://whois.arin.net

For additional information or to obtain copies of any of the materials referenced today, please contact:

Kelly J. Savage, Esq.Sedgwick, Detert, Moran & Arnold LLPOne Market PlazaSteuart Tower, 8th FloorSan Francisco, California 94105-1101(415) 624-7108kelly.savage@sdma.com