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Privacy moot sometimes

Jane Roberts (The Memphis Commercial Appeal) -- E-mail has changed the subtleties of almost everything in the way American society communicates.

Not only is it instantaneous, widely available and relatively inexpensive, its built-in powers allow messages to be duplicated and sent to thousands of receivers anywhere on the face of the globe -- with a solitary click, and often about as little thought.

Ask "Brad the Cad," the London lover who in December simultaneously ruined reputation and maybe even lives when he forwarded a steamy e-mail his hip date from the night before sent him at work.

Within minutes, her account of their intimacies was forwarded and reforwarded around the world, complete of course, with both the participants' full names and e-mail addresses.

The London tabloids had a field day. The story made news for its stun value alone.

Pity, perhaps, Brad the Cad, whose reported biggest concern was that he would be fired for using company computers to replay his steamy endeavors.

Don't laugh. He may be crass, but he's not an idiot.

You can lose your job, your spouse and your chase of the American dream by revealing too much to e-mail.

"It would be hard to argue you have any right to privacy using company machines," said Sam Morris, a Memphis lawyer who represents employees and labor unions. "You're there to do company business on company equipment."

The troubles e-mail can flesh out illustrate every human foible: the person accused of harassment at work can come up pretty red-faced when he realizes his accuser can subpoena every illicit joke ever sent or received on company e-mail . . . even long after they have been erased; the worker suspended without pay for e-mailing imaginings about a co-worker or the employee fired for libeling the boss.

More than half of the people with access to the Internet at work report receiving some form of improper e-mail, according to a 1999 study by Elron Software.

They say the content is adult-oriented, racist, sexist and anything else imaginable.

And it is the reason companies have clamped down on personal e-mail use, says John Scruggs, also a Memphis lawyer, who advises employers in employment law matters.

"Jokes circulating around the workplace on company computers can sometimes be evidence of an atmosphere of illegal harassment," he said, particularly when the jokes are sexual or poke fun at groups of people based on their behavior, sexual orientation, ethnicity or national origin or other legally protected category.

"E-mail has replaced the off-color faxes that proliferated in the 1970s and '80s," Scruggs said. The twist, he said, comes because "employees perceive e-mail to be both informal and (because of passwords and log-in codes) private. In fact neither is true."

In this electronic climate, if a company allows crude e-mail jokes to circulate at work, it is giving the jokes its tacit approval, Scruggs said.

"Some recent cases have held an employer liable for an illegal, hostile work environment even if the complainant did not receive the objectionable material directly through e-mail, but was told about it," Scruggs said.

"This argues in favor of a complete company ban on any communication of potentially objectionable material," he said.

"Of course, if that employee participates in the same type of e-mail activity, it would be evidence that the employee did not find the conduct 'objectionable,' " Scruggs said.

Company liability has become the bottom line for many of the e-mail policies being written across the country, Scruggs said.

What started out as policies to keep employees from wasting time online has since become a corporate safeguard, said Randy Lyles, human resources manager at National Guard Products in Memphis.

"We realized very quickly that there are lots of fun sites to go to on the Internet, and some of the places people ended up being weren't even intentional," Lyle said.

"More than e-mail, we were concerned about the Internet because there are so many opportunities there for inappropriate content. The Internet use was really the catalyst for the company writing its technology policy," Lyles said.

The company adapted its policy in May 2000 and made it clear to all its employees that both their e-mail and use of the Internet would be monitored, Lyles said.

National Guard Products employs 170 people; 30 employees have access to e-mail and Internet at work.

"We haven't had any complaints at all," Lyles said.

"We tell employees to tell their friends not to send them e-mail that is not appropriate to the workplace.

"Our policy does not prohibit a little Internet surfing. We feel if someone is doing research, even on a personal basis, they are learning -- maybe how to use the computer for research -- and moving beyond our little company bubble. They might see things that give them better ideas for things we do at work," said Lyles.

FedEx has recently updated its computer resources policy, which includes e-mail and Internet use, said Mary Hartmann, senior communications specialist.

"We actually liberalized our policy to bring it more into alignment with modern technology," she said.

"We clarified the policy to make it very clear that employees could use the Internet and e-mail systems for personal as well as business reasons, with certain limitations, such as it not interfering with employees getting their jobs done."

FedEx has a limited capability to review employee e-mail, and managers do it only in cases of suspected misuse, Hartmann said.

In a survey conducted for the Society of Human Resources Management by West Group, 11 percent of the respondents said their firms continuously monitor employee e-mails, 40 percent said the firms monitor e-mails when they have reason to, 32 percent said e-mail is monitored randomly and 27 percent said employee e-mail never is monitored.


Key points to consider when developing E-mail policies:

- People send jokes and comments via E-mail that they would not say face-to-face.

- Commands such as "Forward" and "Reply" make spreading E-mail effortless.

- E-mail leaves a trail of evidence for would-be litigants.

- Information deleted from a hard drive may be retrieved months after being erased.

- Attorneys routinely subpoena E-mail as part of many civil suits.

- E-mail may be more valuable than witness testimony since it is the first-hand record of how the person was feeling or acting.

(c) 2001 The Memphis Commercial Appeal

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