Reprinted From The May, 1999, Issue Of Contractors Compensation Quarterly

Does your company have a written policy regarding e-mail? If not, it's definitely something to consider. Whatever you might think about Microsoft and it's battle with the Attorney General's office, the litigation has definitely shed some light on how the courts view e-mail in relation to your business. Here are a few revelations to ponder.

The first and most obvious revelation is the fact that e-mail can be subpoenaed and used as evidence for wrongful doing. Practically all of the evidence used in the U.S. vs. MS case is e-mail related. Second, e-mail is an official company communication. That means an e-mail message can be viewed the same as a message written on company stationary and signed by a company employee. It speaks for the company. Third, once e-mail is requested for legal purposes, it is illegal to delete it. Fourth, what might be intended as off-the-record comments or humor in an e-mail message can be interpreted otherwise in court.

What does that have to do with contractors? Well, practically every contractor we are aware of has internet or intranet capability. That means e-mail is pervasive and here to stay just as sure as the telephone and fax machine. E-mail is powerful and effective. It also must be managed just like cell phones, copy machines, and facsimiles. Any company communication device, system, or software is subject to abuse and as such deserves prudent regulation. Here are some things to consider when putting a company e-mail policy in place.

1. Employees should be made aware of the uses and abuses of company e-mail through some kind of periodic awareness or education program.
2. Company e-mail is a company record the same as are shipping records and company accounts. No unauthorized employee should be permitted to delete e-mail.
3. It is illegal to delete subpoenaed e-mail. Hence, it is wise to limit the time e-mail is stored. This keeps things manageable if e-mail is subpoenaed and also reduces storage hassles.
4. Your company is liable for its e-mail transmissions. For that reason, consider reviewing e-mail on a random basis. Companies with more sophisticated networks may want to consider software "sniffers" that look for suspicious content.
5. Restrict e-mail to business use. Some companies have a pop-up message each time the company e-mail system is executed, such as, "This e-mail system is for conducting company business only. All e-mail is company property and is subject to review by company management."
6. Have a statement of use and abuse of company e-mail in an employee handbook or at the least an official company memo. There are several example statements that do an effective job in our Model Employee Policy and Procedures For Contractors.
7. Caution employees that e-mail is not to be treated as if it were a private company communication. In other words, do not convey anything in e-mail you would not want the general public to know. If at all in doubt about a communication, pick up the telephone instead.