Workers should expect no privacy with office e-mail

WASHINGTON - Securities and Exchange Commission workers whiled away the hours looking at porn on the Internet. A California police officer used his work-provided pager to send sexually explicit notes.

These are a couple of workplace e-flaps that have made headlines recently as employers and employees struggle to figure out whether and to what extent personal use of company communications technology is acceptable.

For those who get caught, the rest of us get to wonder: What were they thinking?

But the fact is that many employees use work e-mail for personal matters and pleasure surf the Internet on company time. According to a 2010 workplace privacy study by Ponemon Institute, a Traverse City, Mich.-based data-security research firm, 42 percent of full-time employees in the workplace with a company-assigned e-mail account "frequently use" it for personal communications and another 29 percent "sometimes" do.

"Most people admit they use work e-mail for more than business," said Larry Ponemon, chairman and founder of Ponemon Institute. "That doesn't make them unethical or evil. We work all the time, and sometimes it's hard to switch" between a corporate e-mail account and a personal e-mail account.

There is an increasing tension at the boundary between work and personal life, said John Challenger, chief executive of global outplacement consultancy Challenger, Gray & Christmas.

"Today, people work 24/7. They work at the office, they work on the road. Their work and personal lives are intertwined," Challenger said. "Companies don't know quite where to draw the line either."

As technology increasingly blurs the line between personal and professional time, workers need to know about current norms for personal use of their company's e-mail.

For starters, don't expect e-mail you send at work to be remain private.

"The bottom line is that employers can have a policy or agreement where the employee waives any privacy right or expectation he or she may have in exchange for working for the employer," said Katharine Parker, partner in the labor and employment law department at firm Proskauer Rose. "Individuals can waive any right to privacy, and that is typically done through a policy that is acknowledged or signed by the employee. It's not reasonable to expect that communications on the employer's system are private; it's not the same as a conversation you have in your living room."

At companies without a policy, workers should still expect that their e-mail won't be private, Parker added.

"As a general matter, most employees know that a company's IT department has access to all e-mails, that e-mails are typically backed up or saved, and that e-mails might be subject to review as part of general IT management or in connection with a litigation or legal process," Parker said. "Additionally, once an e-mail is sent, the recipient generally can do what he/she wishes with the e-mail, including forwarding it, printing it and otherwise distributing it."

Parker also noted that even when employees are allowed some personal use of company technology, policies are designed so that workers can't be guaranteed that someone else won't see it.

Restrictive policies may seen unfair to some workers given that many are spending increasing amounts of time connected to work via technology. Further, it may not be practical or good for morale for an employer to completely ban workers from using e-mail for personal reasons.

Why do companies care about you reminding your spouse to pick up dinner or take your child to the doctor?

For one, firms want to protect their bottom lines. Further, firms need to ensure that workers aren't breaking laws using company computers or leaking confidential information, experts said.

"We know for a fact that employers routinely read e-mail," Ponemon said. "They are looking for certain things - the leakage of business information, off-color remarks that go against ethic policies."

According to 2009 Electronic Business Communication Policies & Procedures Survey from American Management Association and the ePolicy Institute, 89 percent of workers say they have sent e-mail from work to an outside party that contained jokes, gossip, rumors or disparaging remarks, while 14 percent sent messages that contained confidential/proprietary information, and 9 percent of respondents admitted to sending sexual, romantic or pornographic text or images.

A case before the Supreme Court could impact workplace technology policies.

The Supreme Court is expected to rule in the next couple of months in the case of the City of Ontario, Calif. v. Jeff Quon. He used his employer-provided pager to send sexually explicit messages.

"Either way the decision goes, it is likely to impact the way employers draft their policies and may require some update to policies," Parker said.

While the case involves a government employer, it could also affect private firms because the court is likely to comment on the language of the employer's policy, including whether the language is sufficient to destroy an expectation of privacy, and the comments can influence private employers with similar policies, Parker said.

Jane McFetridge, a Chicago employment lawyer, said the Quon case could encourage employers to establish clear policies.

"Employers will say, 'Our computers are the company's, and while we understand that you may on occasion use these for personal uses you have no expectation of privacy,' " McFetridge said.

Then, she added, it will be important for all of the management team to be on board with the policy.

"You don't want any management going off message," McFetridge said. "What this is going to mean is that employers need to be very careful about policy, and be consistent about policy."

Nancy Flynn, executive director of the ePolicy Institute, said best practices call for some sort of formal training.

"Employers do a really great job increasingly of putting policy in place, but they are not doing such a super job when it comes to notifying employees about policies," Flynn said. "You can't expect an untrained work force to be a compliant work force."

According to the AMA/ ePolicy Institute survey, 80 percent of organizations have written e-mail policies, but only 47 percent of employers train workers about e-mail risks, policies and usage.

"If you haven't taken the time to conduct formal training, it's asking a lot of your employees on their own to access your policies, read your policies and understand our policies," Flynn said. "You need to educate your employees and then you want everybody to sign an acknowledgement form."

However, some of these issues may become moot as consumers buy more communications technology, Parker said.

"It may be that newer generations or younger generations of employees may have no need for the personal use of company systems because they are coming into work with their own personal devices," Parker said.

(c) 2010, MarketWatch.com Inc.

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