As an employer, hiring manager, or risk management supervisor, ask yourself this question: “Do our employees think about the legal risk of sending communications over the Internet?” If you are like most companies, your answer would be: “It is very unlikely.” It is a very common problem in the workplace for an employee to believe that their electronic communications are transitory, temporary and, once deleted, untraceable and therefore harmless.
The fact is, email, faxes, and even cell phones leave a trail. Just one email sent by your employee to the employee of a different company goes through an average of four different computer systems. This creates a trail that makes the email real, traceable, and permanent.
As an industry leader in computer science and forensic technology for the past 20 years or more, we have documented, during the examination of electronic systems, employees who frequently say / save things in emails or store on a computer, things that they would never say nowhere. the rest. An employee deleting a potentially harmful or inflammatory email or even an employee deleting an email on their own does not protect anyone. In fact, in the end it could hurt everyone involved.
If a complaint or inappropriate conduct by an employee has escalated to the level where you, as the owner / supervisor, need to consult an expert in computer science and forensic technology, one of the first areas that is checked is the removal of documents and / or emails. These items raise red flags during an examination of the equipment, and original items can and most likely will be found and / or rebuilt. It is very important to understand that intentional destruction of evidence is a serious crime and, if proven, could land one in jail.
An example of a computer message in a court case dates back to the infamous trial of some members of the Los Angeles police who were tried for the 1991 beating of Rodney King. One of the officers created a message on the computer that read: ” … I haven’t hit anyone this bad in a long time. ” Obviously, this became admissible in court.
A more recent example is one where we, as a company, were hired in a defamation case. The libeler was using the Internet to post messages on a public bulletin board that were defamatory and libelous against a competitor in the same field. This person felt that by using “anonymous” emails and posts, this would increase their own position within the same professional community. What libeler did not have was the traceability of emails to his home, cell phone and company computer systems. We were able to locate the electronic trail, and with this information obtain, on behalf of the client, a court order to confiscate the equipment in order to create image copies of the electronic systems. As a result, to keep the matter private, the libeler agreed to a major out-of-court settlement.
As the owner / supervisor, it is up to you to consider and exercise great care in educating your employees on what should and should not be put in writing. Furthermore, it is also up to you to inform your employees about how the written word is conveyed when it is read.
We have now asked and answered two very important questions. First, most employees do not consider the legal risk of electronic communications. Second, as an owner / supervisor, it is critical that you understand the potential legal ramifications. The remainder of this article is dedicated to helping you create and / or update your current policies.
In today’s litigious society, both large and small companies must have company policies. These policies have traditionally covered areas from dress codes to vacation policies. In the last five years, companies have started to adopt IT policies, which are usually found in the employee handbook. As a professional computer and forensic technology company, when we are called in to examine hard drives and / or servers due to a business suspicion of improper use of the systems, we also discuss the company’s IT policies with the appropriate IT supervisor or manager. .
In many cases, we have found that most policies do not adequately cover what is necessary in the age of computers and electronic communications. Companies should have a very clear email and technology usage policy. One of the most important ones that is generally not covered, and unfortunately to the detriment of the employer, is an email retention policy. Since many industries are governed by different and specific federal and / or state statutes about how long information should be retained, your policy should reflect these guidelines.
The policy should be as specific as possible regarding the types of communications that are kept and for how long. Make it clear that there are business and legal reasons for the company to retain such information. Information from emails, as well as from other electronic systems, can be used in many types of cases, including: harassment, discrimination, antitrust, retaliation, Americans with Disabilities Act, insider trading, accounting fraud, improper disclosure of trade secrets and more.
REMEMBER- The intentional destruction, of any kind, of evidence relevant to a current or pending lawsuit contained in the email or document attached to the email, is a crime and, if proven, could land you in jail.
As owner / supervisor, take a moment to review your current IT or company technology policy. If your company doesn’t currently have an IT or technology policy, get one! While you will need to ensure that the individual needs of your business are met, here are some topics that you should consider including in your sources of use:
Electronic information ownership
Technology usage tracking
Acceptable use of company technology.
If you currently have meetings with your employees or publish a company newsletter, these are great places to educate your employees. Use these opportunities to let them know that there are certain things to keep in mind when sending or replying to emails. Employees should be advised to be cautious and not make statements that could be considered a legal conclusion. Let your employees know that they must use the knowledge and experience within the company by picking up the phone and calling their supervisor or the Human Resources Department.
When educating your employees about the content of an email or using other forms of traceable electronic technology, train the employee to ask these simple questions:
Should I email this or should I call?
Would you write this knowing that it can exist forever?
Would you put it on a postcard and mail it?
Would you like to see this printed in the newspaper?
Would I like this to get into the hands of my company’s competition?
Would I want this to fall into the hands of my worst enemy?
Electronic communications are not transitory, temporary, or untraceable. Email is a test. The right education and policies go a long way to preventing both employees and the employer from ending up in a potential lawsuit trying to explain the written word.