Think Twice Before Hitting "Send"

Perhaps you’ve seen the recent headlines about the purported power of the IRS to read your emails without a search warrant or any other due process. Although the IRS has, predictably, walked back from that statement, everyone needs to be concerned about email. Do you send upwards of a hundred emails a day? Late at night, do you email from home on your smart phone? Do you communicate with your customers and employees via text messages?

Virtually everyone uses email as an essential business tool. It has become as common, if not more common, than placing a phone call. Because of its speed and overall convenience, e-mail has replaced the interoffice memorandum as the preferred method of communication. With such ubiquity, however, has come a certain sense of informality. Texting takes that informality to a whole new level. But that sense of informality, combined with the convenience of email and texting, poses a distinct litigation threat to business owners.

The first threat stems from the fact that many employees will prepare and send electronic communications containing conclusions that they would never put in a formal business memorandum. One way or another, emails and texts are preserved for posterity – whether on paper or in electronic format. As such, when litigation ensues, the smart lawyer uses the available discovery tools to obtain such information in the same way as he or she would obtain traditional paper documents. In fact, before first meeting with clients I almost always ask them to send me all email threads regarding the dispute. More often than not, electronic communications obtained in discovery (the pre-trial exchange of information) present a treasure trove of information to the opposing party's lawyer while creating a nightmare for your own lawyer.

For example, I was involved in litigation where my client's employee sent an email in which she questioned certain actions of the client. On its face, the email was incredibly damaging. After interviewing the employee, it became clear that the email was based on nothing but surmise and conjecture. The damage, however, was done. Despite the employee's explanation, the plaintiff built a major portion of its case around the email. Its theory, of course, was that anything in writing must be true. As a general rule, people are more inclined to believe what they see rather than what they hear. Although the matter was ultimately resolved in my client's favor, the client could have avoided expense and anguish had the employee simply given more thought before hitting the “send” button.

Similarly, what about the text or email that attempts to placate a complaining customer? Are your employees more likely to overpromise or go beyond mere puffery in a way they wouldn’t if constrained to the traditional business letter?

What can the business owner do? Obviously, you should warn your employees that, despite the "delete" button, emails and texts exist in near perpetuity. Electronic messages sent in haste, or in an emotional moment, often come back to life in the courtroom - - generally on a 8'x12' blowup in front of the jury. In a different context, we particularly see this in family law cases where the parties engage in “text wars.” You should also discuss with your employees that emails are no different than the traditional interoffice memo. Ease and convenience are no excuse for failing to adhere to proper business standards. As in all situations, honesty and accuracy are the touchstones that should be instilled in your employees.

The second threat stems from your employees' inappropriate use of electronic messages. Inappropriate messages sent over the company's e-mail system could expose the company to harassment, defamation, or other claims. One study found that more than 50% of employees had received pornographic, sexist, or racist e-mails at work.

To reduce these risks, many employers monitor their employees' use of e-mail and Internet access in the workplace. Because such monitoring poses its own risks, employers should be familiar with the law in this area and should implement policies and practices that minimize the risk of lawsuits.

Under federal law, the monitoring of e-mails by an employer is governed primarily by the Electronic Communications Privacy Act of 1986. Under this act, the lawfulness of particular monitoring activities will depend heavily upon whether employees' messages are intercepted during transmission or are retrieved from storage on the company's server.

In general, "real time" monitoring is permitted only under certain situations. The most common exception is when the employer has notified its employees that their communications will be monitored. I recommend that such notice (1) be in writing, (2) state that any private, non-business-related communications are done at the user's own risk, with no expectation of privacy and (3) state that a password is not an indicator of personal privacy.

In contrast, monitoring of messages stored on an employer provided server is generally fair game so long as the employer is the provider of the email system. However, disclosure of such communications to third parties is restricted. Accordingly, before discussing such messages with anyone other than the employee at issue, seek competent legal advice. The safest course of action is to view only those messages stored on your server.

To the extent current Illinois law addresses this issue, it largely mirrors federal law. Nonetheless, if you plan to implement a monitoring policy, talk to your attorney first as the law in this area if ever changing.

Finally, the smart business owner has (or soon will) institute a code of conduct for its employees' Internet and email use. That code of conduct should prohibit the transmission of threatening, discriminatory, offensive, harassing, obscene and derogatory messages or material. Whether or not you choose to monitor, the code of conduct should also notify your employees that they have no expectation of privacy with respect to their email.

Email and, to a lesser extent text messages, are an integral and necessary part of today's business world. However, as with every other part of your business, do your best to mitigate their dangers.