The year was 1992, and, as befitting one of the firm’s junior attorneys, I was the only one in the office on a Sunday afternoon. I wandered into the library when I noticed the computer monitor come to life. It seemed that one of the firm’s partners was accessing the network from home.
I didn’t think anything of it and continued my research, when I happened to look over at the screen to see that the partner was methodically checking into each employee’s e-mail account and reviewing recent incoming and outgoing messages. He was, not to put too fine a point on it, reading our mail.
Maryland law is unchanged from that day to this in that the question of whether an employer is within his or her right to do this hangs on the employee’s reasonable expectation of privacy. Here, the e-mail address, domain, and computer network belonged to the employer. As an employee, I did not have a reasonable expectation that my e-mail would remain confidential from my employer. I may have been morally troubled by this, but I could not take offense from a legal standpoint.
Now, more than ever, the issue of privacy rights in the age of social media and all forms of electronic communication is front and center for all employers. There is no such thing as a whisper anymore, when it seems as if every half-formed thought is broadcast online or to an inbox. Employers are rightly concerned about their reputations, trade secrets, and relationships.
Recognizing the concern as an employer, however, doesn’t get you there. What gets you there is (1) well-formed, clearly communicated policy; (2) the creation of a climate of accountability; and (3) real-life consequences for ill-advised actions.
If you, as an employer, have not taken steps to address the most glaring threat to security since Vidkun Quisling (click the link, it’s fun and educational), the first step is to formulate your social media, e-mail, and communication policies. The second step is to provide them to everyone in the company – employee and independent contractor alike. Don’t forget to give real consideration to the “what if” questions and spell out specific remedies the company may consider in addressing a breach.
Mark Twain once said that a lie can get halfway around the world before the truth ever gets its boots on. No policy can prevent someone from saying something unpleasant, damaging, or untrue online or in an e-mail. In view of that, your best move to protect yourself is simply to start lacing up your boots now…just in case.