Publications
The Action Plan
So what should your action plan be? Consider the following:
- A global prohibition of all personal use of e-mail and internet use is not practical in most workplaces. Employers are usually better served by restricting the types of personal e-mail and internet use so that, for example, employees do not use the computers for unlawful purposes, or to violate their employer's rights in trade secrets or intellectual property, or to conduct independent business activities, or in defined ways that could expose the employer to liability.
- You must have an e-mail/internet policy. Counsel must be involved in the drafting and implementation of the policy so that it satisfies current law, so that it does not implicate violations of other laws (like the ADA and labor laws), and so that it stays up to date. It must also be distributed in such a way that you can prove it was received by all employees. And you must enforce it consistently.
- If you choose to monitor employee e-mail, compliance with the ECPA mandates that you consult with counsel regarding who should conduct the monitoring, how and when it should be done, and what records should be kept respecting the efforts.
- If you choose to use the sophisticated monitoring software now available, be mindful of the fact that "flagging" certain key words can become a litigation issue. It can become extremely relevant if, for instance, an employer chose to search for terms such as "union," "organize," "strike," "HIV," and the like.
- Some states have enacted specific legislation that covers electronic and similar monitoring activities. You must get specific legal advice for all states in which you conduct business. Recently, for instance, a bill passed the California legislature making it a crime for an employer to monitor an employee's e-mail without warning the employee in advance. The Governor vetoed the bill. But it will probably be back, and other states may jump on that and similar bandwagons.
- Keep abreast of changes in the law, such as the expected enactment of the Notice of Electronic Monitoring Act. Of course, we will keep you apprised in Avoiding Lawsuits. Our law firm, and our affiliated training firm, are ready to provide you with assistance in these areas.
Counsel Consulting Group LLC helps companies throughout the United States avoid employment and HR-related claims and liabilities. CCG assesses existing policies, procedures and problem areas; it provides customized liability-avoidance training to managers and executives; and it designs and implements business techniques that reduce employment liability risks on a long term basis. CCG also offers specialized workshops for managers and HR executives, customized consulting in focused employment-related areas, and CD-ROM and web-based training alternatives. For more information, contact us at info@powelltrachtman.com and visit our website at www.counselconsulting.com.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
