Courts subpoena e-mails

If you wouldn't say it out loud at work, don't say it in an e-mail, expert says.
CBS MARKETWATCH
SAN FRANCISCO -- The number of workers getting fired for violating e-mail policies is rising as companies face more subpoenas of e-mail records, according to a new poll.
Twenty-five percent of companies terminated a worker for violating e-mail policies, up from 22 percent last year, according to the poll.
Twenty percent of employers polled, up from 14 percent last year, had e-mail records subpoenaed for lawsuits or regulatory investigations and 13 percent of companies have faced lawsuits based on employee e-mail messages, according to the American Management Association and The ePolicy Institute, which polled 840 of their U.S.-based member firms.
"It's very, very common," said Nancy Flynn, executive director of The ePolicy Institute, a training and consulting firm based in Columbus. Flynn often testifies as an expert witness in court cases involving e-mail.
"If a workplace lawsuit is filed, you can pretty much count on the fact that e-mail is going to be subpoenaed, and now instant messages are starting to be subpoenaed," she said. About 0.5 percent of companies said instant messages have been subpoenaed.
Common situations
Most workplace lawsuits involving e-mail messages involve sexual harassment, racial discrimination or hostile work environments, Flynn said.
Employees who get fired often are sending messages that violate a company's e-mail policy regarding content, such as messages with inappropriate language or photos. Another common mistake: using the company e-mail system for personal messages.
"Some organizations totally ban the personal use of e-mail and IM systems. Some allow limited use. If you're using it for personal reasons, and it's banned, that would be grounds for termination," Flynn said.
For workers, the message is clear: Think before you hit send.
"If you were standing in an elevator with a client, competitor and a colleague, would you say it out loud? If not, don't say it in your e-mail," Flynn said. Or if you'd be embarrassed if your e-mail message were read on the evening news, don't send it, she said, noting that messages are often forwarded to others, unbeknownst to the original sender.
"That particularly holds for instant messaging. People tend to think because that window disappears and because the message goes so quick, they can write anything they want. It's simply not true. Your employer may be monitoring and retaining messages, or your recipient may be retaining those messages," she said.
Sixty percent of companies use software to monitor incoming and outgoing e-mail messages, while 27 percent monitor internal e-mail messages between employees and 10 percent monitor instant messages. Usually, monitoring software searches for key words or phrases the company's policy defines as inappropriate. Any messages the software catches are then quarantined and can be reviewed.
Policy issues
Some workers may be using e-mail and IM systems inappropriately because they don't know their company's policy. While more companies now offer e-mail policy training -- 54 percent of firms now, up from 48 percent last year -- companies often train workers only once.
"The place where employers really drop the ball consistently, and this has been true since we started this survey in 2001, is the failure to conduct e-mail policy training," Flynn said. "There has been a big increase, [but] what many of those organizations are doing is they offer training once, and they never repeat it, and they don't train their new hires."
And, though 79 percent of the companies polled have a written e-mail policy, those policies are often vague or out of date, Flynn said. About 20 percent of companies said they have written instant-message policies.
Most companies don't retain key business records -- and that may result in problems down the road. About 35 percent of firms retain key business records contained in e-mail messages, and 6 percent save such records sent by instant message.
A business record is any kind of electronic or paper record that records a business transaction, say a purchase or a sale or anything related to the company's daily activities, Flynn said.