By: Randy Dotinga
Imagine if every phone call you made was recorded and stored in a giant computer at work. You probably wouldn’t spend much time talking about the publisher’s affair with his secretary, the marketing director’s stint in rehab, or your own plans to take a sick day to go skiing.
But we don’t think the same way when we type messages to each other and click the send button. “People believe that e-mail is ephemeral and fleeting, like a conversation,” said Christina Cavanagh, an e-mail expert and professor of management communications at the Richard Ivey School of Business in London, Ontario. “They don’t realize that e-mail records information into institutional memory for almost all time.”
Lori Lesser, an attorney with Simpson, Thacher & Bartlett in New York City, puts it this way: “E-mail is easy to create and almost impossible to destroy.”
But before you become paranoid and start limiting your e-mail to comments about the weather, learn the facts about your rights.
Your employer might have a written e-mail policy. “You may think that you haven’t consented [to e-mail monitoring] because no one has asked you a specific question, but it’s not that simple,” Lesser said. Chances are that the policy is in the employee handbook, the one that you agreed in writing to follow, she said.
E-mail policies range from the general — the employer can examine e-mail for any reason — to the specific. For example, Dow Jones & Co. Inc., publisher of The Wall Street Journal, reserves the right to monitor e-mails (along with Web browser bookmarks and records of Web sites visited) during investigations of inappropriate or excessive personal use of workplace computers. Suspicions about hacking or spamming could also prompt monitoring.
The McClatchy Co. newspapers have similar policies, said Information Technology Director Christopher Caneles. If a supervisor wants to review an employee’s e-mail, the human resources department must decide if the review is warranted, and may conduct the review itself, Caneles said.
“McClatchy’s managers do not, as a matter of course, monitor their employees’ e-mail,” he said. “With thousands of employees using e-mail, I’m aware of only a few such cases — less than a handful — over the years since e-mail has become a ubiquitous part of our work day.”
If your newspaper doesn’t have a written e-mail policy, employees are at the mercy of federal and state law. “The general rule is that employers have a lot of rights and employees don’t have too many,” said Lee Tien, senior staff attorney with the Electronic Frontier Foundation (www.eff.org), which monitors cyberspace law.
Federal wiretapping laws prevent employers from intercepting e-mails during transmission. But supervisors can still track an e-mail before it’s sent — perhaps by using a software program that logs keystrokes — or by monitoring stored e-mails after they’re sent, Tien said.
Another federal law prevents Internet Service Providers from monitoring e-mail. But the law doesn’t generally affect companies that aren’t ISPs, Tien said.
So is anyone out there monitoring e-mail? Surveys of U.S. companies have shown that somewhere between a third and more than half engage in the practice. “It’s not a trivial amount,” Tien said.
Companies may also engage in more subtle forms of monitoring than blatantly reading individual e-mails. Some software programs are designed to alert supervisors when an employee includes an offensive word in an e-mail or visits a sexually oriented Web site.
Luckily, your supervisor probably has better things to do than sort through e-mails or keep tabs on your Web browsing. “Realistically, your employer isn’t going to sit there monitoring your e-mail 24/7 without an extremely good reason. He or she has a company to run,” said attorney Lesser, who formerly worked as a reporter with Reuters.
But bosses may try to control your e-mails by creating general rules about what you cannot send. In the San Francisco region, the Newspaper Guild is fighting the ANG Newspapers (a division of MediaNews Group Inc.), which reportedly is trying to forbid employees from sending “broadcast” e-mail messages to two or more people about union business. E-mail about the workplace “has the same degree of statutory protection as meeting at the water cooler to discuss union business or hanging something on a bulletin board,” said Barbara Camens, the guild’s general counsel.
Tien, the cyberspace rights attorney, believes workplace e-mail rules boil down to how employers view their employees. “Do you treat them like adults, or do you treat them like children? In the long run, if you want employees to behave responsibly, then you’ve got to treat them with respect.”