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Employers Resort To Firing Employees Who Abuse Electronic Communications

By Eric Sinrod

In one of my recent columns, I wrote about how employers have considerable worries as to how employees handle their electronic communications by way of blogging and instant messaging. Well, it turns out that employers are so concerned about their legal and financial risks caused by inappropriate employee electronic communications, they are terminating employees who violate workplace computer policies.

According to the 2006 Workplace E-Mail, Instant Messaging & Blog Survey by the American Management Association (AMA) and the ePolicy Institute, 26% of employers have fired employees for misuse of email, another 2% have terminated workers for inappropriate instant messaging chat, while yet another 2% have dismissed employees for offensive blogging content, including content posted on the personal home computers of employees.

Why are employers fighting back so hard against their own employees? The AMA and the ePolicy Institute believe that this backlash follows a wave of lawsuits caused by employee emails. The survey points out that 24% of companies have been served with subpoenas for their employees’ emails, 15% of companies have gone to court to battle lawsuits triggered by emails from their employees, and the failure by employees to retain certain emails as required has led to significant financial sanctions in some cases.

Why are employees causing so much trouble for their employers? Unfortunately, the same benefit of electronic communications, ease and speed, has a downside. It is so easy to interact with others quickly by way of email, instant messaging, and blogging, that some employees treat these communications like verbal chatting, forgetting that the electronic communications are saved and can be distributed to others. What a given employee might want to say verbally one-on-one to another person in private very well might not be the type of communication that should be preserved as an electronic communication.

Also, some employees have the mistaken belief that the First Amendment in our Constitution protects all forms of their speech, including their electronic speech. Not so! The First Amendment does not allow employees to enter into communications, electronic or otherwise, that defame their employers, improperly harm other employees, or that compromise the trade secrets and intellectual property of their employers, as just a few examples of non-protected speech.

Employees must understand that the law does not necessarily consider their workplace electronic communications as private and does not embrace communications that are adverse to the interests of their employers. Many employees are employed “at-will,” which means that they can be terminated without any reason by their employers. Even employees who have contracts that say that they will not be terminated but for “good cause,” may provide the good cause needed by employers if they engage in offensive electronic communications.

On top of all of this, many employers have employees sign company business equipment polices that make plain that employees have no privacy interests in their workplace communications and that provide the do’s and don’t’s of communications. However, while 76% of employers have polices that address workplace email usage and content, only 2% of employers have educated their employees with respect to blogging. Moreover, even though 35% of employees use IM at work, only 31% of employers have IM policies in place. As technology develops and further means of communicating come to the fore, employers need to be proactive in training their employees.

Of concern, while 34% of surveyed companies have written email retention/deletion polices in place, the same percentage of employees do not understand the difference between emails that must be saved and insignificant emails that should be purged. This can come back to bite employers, especially regarding destroyed emails that should have been saved – a company could be charged with destroying evidence relating to matters at issue in legal proceedings – which could lead to substantial financial sanctions.

So, yes, it is understandable that under certain circumstances employers may have no recourse but to terminate employees who are causing trouble with their electronic communications, especially after having been warned. But, employers should be sure to be ahead of the curve teaching their employees about how properly to use information technology.

Communications

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