Employee E-mail and Online Risk: Business Briefing

A template briefing for an in house lawyer to give all nonunionized employees regarding work-related e-mail and online risk. Employers with unionized employees, who are covered by collective bargaining agreements, must consider additional factors that are outside the scope of this briefing (see Practice Note, Employee Handbooks: Best Practices: Collective Bargaining Obligations). Click here to download in Microsoft Word.

What you write in your work-related e-mails or internet postings could seriously damage your own, another person's or the company's reputation. You may be subject to discipline, including losing your job, and you and the company could be subject to lawsuits and other penalties.

This note highlights the risks you should be aware of when:

• Using your employer's e-mail and internet systems at work.

• Sending work-related e-mails.

• Discussing your workplace on the internet.

Your Rights and Responsibilities

• Nothing in this briefing is intended or any of your company's policies should be intended to prevent or discourage employees from engaging in legally protected activities such as under the National Labor Relations Act (NLRA) to:

  • discuss wages, benefits or terms or conditions of employment;

  • join or form unions; or

  • raise complaints about working conditions for their and their fellow employees' mutual aid or protection.

• Employees should, however, keep certain things in mind when:

  • using company-provided computer equipment, information technology or internet systems;

  • e-mailing using the company's e-mail system; and

  • posting on the internet about or referring to the company.

Points to Consider Before You Click

No Expectation of Privacy

• You should not have any expectation of privacy when using company-provided computers, laptops and other electronic and communication devices in any manner, including to:

  • send or receive e-mails;

  • browse the internet; and

  • send or receive instant messages, texts and so on.

• Because the company must guard against misuse, [EMPLOYER NAME] reserves the right to monitor, intercept and review, without further notice, every employee's activities using the company's IT resources and communications systems, including visiting websites and accessing personal, web-based e-mail accounts, such as Gmail or Yahoo. [CROSS-REFER TO THE COMPANY'S IT RESOURCES AND COMMUNICATIONS SYSTEMS POLICY.]

• Do not use the company's IT resources and communications systems for any matter that you want to keep private or confidential from the company.

Stop and Think

• Anything written in an e-mail has the potential for public exposure, for example, if the e-mail is forwarded to others. Posting on the internet is essentially making a public statement, for example, when commenting on social media sites, blogs or other electronic forums.
• Carelessness in what you write can have serious personal, disciplinary and financial implications.
• Even if you are e-mailing or using other forms of online communication in your own time, if you refer to the company people at work or work related matters, you and the company could face adverse consequences.

[CROSS-REFER TO THE COMPANY'S SOCIAL MEDIA POLICY.]

E-mails and Internet Postings Can be Used in Legal Proceedings

• E-mails and internet postings can be used against you or the company in legal proceedings, disciplinary meetings or other regulatory investigations.
• Never delete e-mails relating to any actual or potential legal dispute or investigation.
• Never send or forward any e-mail or make any internet posting that could be considered to:

  • constitute or encourage a criminal offense or violate any law or the rights of any person or entity;

  • consist of or contain any impersonation or false, deceptive, incorrect, inaccurate, or non-current registration information, e-mail address or identification information or designation; or

  • consist of or contain any spam, junk mail, chain letter, political campaign material or unauthorized commercial advertisement, promotion, solicitation or mass mailing.

E-mails Travel Fast

• You cannot control what the recipient does with an e-mail and it can be forwarded within seconds. Take extra care with what you write.
• Remember that e-mails sent by a company-provided mobile device or work e-mails sent from home are subject to similar risks as e-mails sent from your computer at work.

Difficult to Delete E-mails and Online Postings

• Never assume that by deleting the e-mail or post that you are safe. Forensic IT equipment can still find supposedly "deleted" messages.
• What you publish online will likely be available for a long time, to be read by anyone, including the company itself, future employers, co-workers, and social acquaintances.

Do Not be Hurtful, Spread Rumors or Insult Anyone

• Never use the company's equipment to send e-mails or post content online that could be considered obscene, pornographic, indecent, maliciously false, racist, sexist, bullying, threatening, hateful, abusive, an invasion of privacy, hurtful or otherwise in violation of the law or the company's code of ethics or other policies, particularly those prohibiting discrimination and harassment. Again, nothing in this section or briefing is intended to curtail employees' rights under the NLRA.
• Never lie, exaggerate or make a maliciously false or inaccurate statement about another company or person. You could be sued even if an e-mail was only sent to one person.
• Forwarding an e-mail can be just as serious as writing the original. You could be sued even if you sent or forwarded the original e-mail to only one person.

Take Care with Confidential Information

• Where possible, avoid sending confidential information (such as confidential intellectual property, trade secrets or proprietary information) by e-mail. Speak to the legal department first about how best to protect the information.
• Any e-mail containing confidential information should be clearly marked as "confidential."
• If you receive an e-mail that contains another's confidential or proprietary material (for example, another company's trade secret or confidential information) and the e-mail was not part of a legitimate business interaction, tell your line manager and legal department immediately.
• Do not reveal any confidential or proprietary company information on the internet. Doing so could subject you to discipline, up to and including termination.

Do Not Make a Contract by Mistake

• A legally binding contract can be made by a simple exchange of e-mails.
• Make it clear if you do not intend the e-mail to be binding.

Do Not Copy Someone Else's Work

• Only use or attach other people's work to your e-mails if you have permission or you know it is not protected by copyright or other intellectual property rights, for example, trademark rights and rights of publicity. This includes photographs and music.
• Do not assume that work you find on the internet is free to use.

Take Care When Writing about Personal Matters

• Writing about your own or another's private life in e-mails or online can be profoundly embarrassing for all concerned if the wrong people see it.

Do Not Send or View Offensive or Unknown Material

• Monitor carefully what arrives in your work-related e-mail inbox, especially if you do not recognize the sender or the title of the e-mail seems odd.
• If there is any risk that an e-mail may contain a virus, do not open it and inform the IT department immediately.
• You could be disciplined or even dismissed for forwarding inappropriate (such as vulgar, obscene or other content violating the company’s code of ethics and policies against discrimination and harassment) e-mails or accessing inappropriate websites at work and in severe cases may also be a criminal offense.

Avoid Unproductive Usage

• [The company prohibits personal use of social media on the company's computers, networks, and other IT resources and communications systems during working time.] OR
• [The company allows light personal internet and e-mail usage as long as it does not interfere with your duties. But excessive, unproductive usage is not permitted and can be treated as gross misconduct for which you may be dismissed.]
• E-mails can also waste a lot of time. Think carefully before copying someone on an e-mail, especially if the e-mail is directed to the company's attorneys or if there is a long chain of e-mails attached. Ask whether they really need to see it.

[CROSS-REFER TO RELEVANT CORPORATE POLICY]

If in doubt, talk to your manager or the legal department.