How employers can address employee use of Internet and e-mail

Did you ever consider that the speed, productivity, and convenience of the Internet would actually make your business less efficient? In a recent study, the E-Policy Institute reported that 90 percent of employees admit to recreational surfing on company time, accounting for nearly one-third of their online activity. A survey conducted by America Online and Salary.com recently revealed that the average worker admits to wasting 2.09 hours per eight-hour workday, and that 45 percent of those surveyed reported personal Internet use as their primary distraction at work. How do your employees line up with the national average?

In addition to the loss in productivity, employees rarely consider that e-mail may be monitored and employers rarely consider that e-mail may later be subpoenaed as evidence. Certainly, Merck, the creator of Vioxx, didn't consider that an email from its top scientist would be central to a Texas jury verdict of $253.5 million dollars. The email was sent two years before Merck began marketing Vioxx and stated: "The possibility of increased [cardiovascular problem] events is of great concern ... I just can't wait to be the one to present those results to senior management."

Does your electronic storage or database contain an e-mail like this?

While the Internet plays a vital role in today's global economy and is essential in virtually every conceivable workplace, it has also brought a host of problems into the workplace. The ease in which employees can send pornography, off-color jokes, or other inappropriate material is certainly problematic. Couple these potential problems with the informalities and frankness used by most people in sending out e-mails before thinking them through and an employee's access to the Internet on the job can quickly become an employer's worst nightmare. So, what should employers do to address these potential problems?

Since recent studies reveal employees may be wasting one fourth of their day using the Internet for personal use, this lost productivity should not go unaddressed. Yet, this is not the only threat. The loss in productivity associated with personal Internet use likely pales in comparison to charges of harassment, copyright infringement, or discrimination that could be lodged by employees receiving material from their co-workers that is sexually charged, pornographic or discriminatory. Other serious risks include the dissemination or disclosure of confidential information, trade secrets, or sensitive business information.

The most important step that an employer can take to tenor the pitfalls of the Internet is to issue a written policy addressing employee e-mail and Internet use. To be effective, this policy must be communicated to employees and must be enforced. Making employees aware of the problems associated with inappropriate Internet use may go a long way in helping these employees avoid transmitting inappropriate material through company resources.

As part of the policy, employers may want to inform employees that their Internet use will be monitored to ensure that computer resources are not abused and that sensitive information is not disclosed. If employees understand that what they access and send may be monitored by their employer, they may be less likely to access and send inappropriate material. A good policy should give employees clear guidance concerning activities and uses that are permitted as opposed to those that are prohibited. The inclusion of specific examples of prohibited conduct may also be desirable.

An employer's policy should also clearly state the disciplinary action that can be taken by the employer for violations of the policy. To provide open channels of communication, the employer should also encourage employees to ask questions about Internet use in the workplace and to report any inappropriate activity so that it may be addressed and corrected.

In addition, an employer's operating procedure as to storage, purging, and retention of electronic files may also affect the amount of files it has that could be subpoenaed if court proceedings were initiated. Employers who have a legitimate business interest to routinely purge e-mail files may be able to limit their exposure to the costs and risks of expensive electronic discovery that can result from court proceedings. Thus, employers may want to review their business goals and interests to create a storage and retention policy that best suits those goals and interests.

The bottom line is that it is up to an employer to determine what type of computer and Internet use is acceptable, and to inform its employees as to those guidelines and restrictions. Once defined, employees have the responsibility to comply with the employer's policy, or face the consequences of disciplinary action as a result of noncompliance.

Miranda Du is a partner and chair of the employment law group at the Nevada-based law firm McDonald Carano Wilson. Ryan Bellows is an associate in the firm's Reno office and works primarily in the areas of commercial, corporate and general civil litigation.