Today’s employers face electronic challenges from their own employees that were never dreamed of twenty years ago.  Employees no longer need to be in the office to access their employers' computer, and e-mail, in many ways, it has replaced the telephone as the preferred method of quick communication. While the use of this technology has provided flexibility and increased productivity, it has also created new threats and challenges for employers.

Many employers are naïve about the dangers associated with their employee’s use of technology.  Email in particular, creates the tendency of workers to be more candid or careless in such communications.  Often, employees erroneously believe that once an email is deleted it will be removed permanently from the system.  The delete function does not immediately make a message irretrievable; it merely marks the message as available to be overwritten by newer information and a “deleted” e-mail may remain available for a significant period of time.

Given the potential value of stored electronic communications, plaintiffs’ employment attorneys always focus on discovery of stored email, voice mail, and other electronic communications.  For example, email may provide evidence of sexual or racial harassment or other types of discrimination.  As most people know, organizations now exist that actually specialize in locating computer files that companies once thought were destroyed.

Document Files
E-mail is not the only type of document subject to discovery. Most documents are created electronically. The combination of sharing documents, saving previously edited versions, and backing up copies on diskettes and tapes means that a discovery request that used to uncover a single paper document will now produce many.  Documents are “discoverable” if a party can be compelled to produce them during a lawsuit. The focus of most electronic discovery disputes center on the discoverability of the information, as well as who should bear the burden of storing and retrieving data.

Complying with electronic discovery requests can be extremely costly to employers and courts have been reluctant to shift that cost to the party requesting such information.  In light of the technical problems associated with retaining emails and other electronic communications, as well as the economic costs of complying with electronic fishing expeditions, companies are best advised to adopt a preventive policy designed to limit the use of the company’s email system and define procedures for its use. 

Far too many employers have no real understanding of how to protect their electronic information.  Employers need to be familiar with how their electronic communications systems operate and they may wish to alter those operations so as to ensure that communications are actually destroyed when deleted.  While many employers have policies and procedures regarding the company's electronic communication systems, they do not adequately address the key areas of storage and retrieval as well as appropriate security measures, nor are these policies enforced or updated on a consistent basis. 

Below is a checklist to help you implement an electronic communications policy and practices. 

Recommended Steps

  1. Review your technology and electronic communication policies and calendar this process for annual updates. Do not forget to address issues relating to instant messaging, the use of corporate networks to access web-based e-mail, blogging or the use of home computers to conduct corporate business.  Also address software licensing, and no harassment, and email restrictions.
  2. Train employees and managers about these policies, and uniformly enforce these them.
  3. Avoid words or actions that may tend to create an expectation of employee privacy in employer electronic communications systems.
  4. Monitor electronic communications in the workplace uniformly.
  5. Establish electronic and physical security measures consistent with industry standards.
  6. In establishing policies, consider potential litigation risks related to storage and retrieval of electronic communications systems, including handhelds.