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EMPLOYEE USE OF COMPANY E-MAIL

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EMPLOYEE USE OF COMPANY E-MAIL

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  1. EMPLOYEE USE OF COMPANY E-MAIL MONITORING & PRIVACY ISSUES

  2. TECHNOLOGY ISSUES-OF-THE-DAY • 80s – Proliferation of the PC • 90s – Internet • 00s – Privacy in the workplace

  3. PRIVACY IN THE WORKPLACE: THE ISSUE Has the attention of the U.S.’s largest corporations • There are presently 110 Chief Privacy Officers among such corporations. • By 2002, it is expected the number of CPOs in such corporations will rise to between 500-1000. Source: John Schwartz, (Chief Privacy Officers Forge Evolving Corporate Rules), New York Times, 2/12/01.

  4. EMPLOYER USE OF COMPANY OWNED TECHNOLOGY • 90% of all businesses having more than 1,000 employees have e-mail and employees sent over 60 billion electronic messages in 2000 • Internet use: - 171 million in 1999 - 304 million as of March 2000 • Employers’ electronic monitoring of employees’ communications has doubled since 1997 BACKGROUND

  5. The ACLU estimates that the number of employees monitored in the workplace jumped from 8 million in 1991 to 30 million in 1999 • Nearly 3/4ths of major U.S. companies record and review their employees’ telephone calls, e-mail messages, internet searches and computer files • 29% of U.S. companies block access to some internet sites

  6. 50% of such companies have had to discipline employees for misuse of company internet or e-mail and 25% had discharged employees for doing so • Recently, Dow, The New York Times & Xerox reported mass firing for employee misuse of company’s technology • A recent poll found 89% of Americans concerned about invasions of privacy

  7. Employee use of company-owned hardware & software for personal use during work hours affects productivity Such conduct can also lead to all manner of legal problems: Sexual harassment Discrimination Anonymous web posting (trade secrets & defamation) Harm to 3rd parties Discovery in litigation WHY THE MONITORING?

  8. “Surprising Internet Use Statistics” by Websense, Inc. (http://websense.com/management/stats.cfm) Sample: 62% of U.S. companies’ employees surf for sexually explicit material on the internet The #1 search term used is “sex” and “pornography/porno” is the 4th most used search term FACTS ABOUT INTERNET USAGE

  9. 72% of all internet porn traffic occurs during working hours During working hours, 9% of employees earning less than $35,000 surf the internet for a new job while 11% of those making between $75,000 and $100,000 search for a new job Other data estimates that the cost to companies from this type of lack of productivity is $5.3 billion

  10. ONE RESULT OF MONITORING Employee Invasion of Privacy Claims have increased 3,000% in the past ten years

  11. FOUR REASONS TO MONITOR • Failure to monitor employees can result in substantial exposure from within the company or by parties outside; • Active monitoring by management can avoid disclosure of company trade secrets and defamation of the corporation; • Maintaining an effective monitoring system will discourage dissemination of internal electronic communications that could be used against the company in the event of litigation; and • Employee productivity and even retention can be maintained through an effective policy and monitoring system

  12. HOW SHOULD AN EMPLOYER RESPOND TO THESE ISSUES? • HR and IT work with your legal counsel to formulate a monitoring program

  13. GENERAL PURPOSE FOR COMPANY POLICIES • Insulate employer from liability for unauthorized employee conduct • respondeat superior doctrine

  14. WHAT SHOULD YOU INCLUDE IN YOUR PLAN AND HOW SHOULD IT BE IMPLEMENTED? • Scope will depend on type of business involved • Have management team agree on what level is needed • Once level decided, run monitoring software for a week; see what it reveals

  15. WRITTEN MONITORING PLAN • Disclosure to employees prior to hiring and periodically thereafter that all e-mail, voicemail, Internet access and computer files are subject to monitoring • Notify employees that the technology they are provided by the company is company property and is to be used for business purposes • Explain to employees that despite the fact that they are given password to access your system, they should not have an expectation that the system is “private”

  16. Notify employees what, if any, materials they will not be allowed to transport in and out of the company system • Have an agreed upon electronic “document” destruction plan • Reiterate that your non-harassment and non-discrimination policies apply to company email

  17. Notify employees what the penalties for violating the policy are or could be. This should include reprimand, demotion and termination; and • Make sure you get something in writing from your employees to acknowledge receipt of the written policy when issued and if updated