January 1, 1900

by Susan E. Inverso

As the use of e-mail becomes the predominant method of communication for many businesses, employers are finding themselves faced with many unexpected problems, including exposure to various forms of legal liability. For example, employees can use the company’s e-mail system to infringe copyrights, violate trade secrets, commit the company to contracts, defame people or businesses, and even harass co-workers.

One such problem was recently addressed by the New Jersey Supreme Court in Blakey v. Continental Airlines where the court considered whether an employer has the legal duty or obligation to monitor its employees’ private communications on a company provided electronic forum. The plaintiff, who was a female pilot, sued her employer, Continental Airlines and certain other male co-pilots for sexual harassment. While Ms. Blakey’s sexual harassment lawsuit was pending in federal court, certain male co-pilots utilized their employer’s electronic bulletin board to post harassing and genderbased messages about her. In response, Ms. Blakey brought suit in New Jersey Superior Court against those co-employees, for publishing defamatory statements about her. Her claim against the employer alleged liability for a hostile work environment arising from those defamatory statements.

Although the court found that employers have no duty to monitor their employees’ e-mail or other private communications, this does not mean that employers can disregard the posting of offensive messages on a company e-mail system when the employer is aware of those messages. Employers have a duty to take effective measures to stop co-employee harassment by e-mail when the employer knows, or has reason to know, that such harassment is taking place in the workplace or in settings that are related to the workplace.

The Best Defense is A Good Offense-Employers Should Implement an E-Mail Use Policy

The New Jersey Supreme Court noted that effective remedial steps by an employer reflecting a lack of tolerance for such harassment went a long way in support of an employer’s defense in a sexual harassment case. In other words, employers may protect themselves against liability by establishing and adhering to a policy regarding employee use of the company’s e-mail system that expresses zero tolerance of sexual harassment. The policy must make it clear that the employee has no right to privacy to any information transmitted or received by company e-mail. Further, employees should be informed that the employer has access to all e-mails and retains the right to read employee e-mail. Importantly, the employer must warn employees that they are prohibited from sending discriminatory or harassing messages including, sexual comments, jokes or images, racial slurs and gender-specific comments. Employers should post the no tolerance sexual harassment policy on its electronic bulletin board and include it as part of the employee handbook for their protection.

The basic purpose of implementing an e-mail use policy is to let employees know that their employer may be reviewing their e-mails. This may prevent employees from sending inappropriate e-mails in the first place. The actions of employers in establishing a policy which is clearly intolerant of harassing or offending e-mails, is the first step in avoiding liability when the policy is violated. If your company is in need of advice regarding modifications to its employment manual and policies, given the change in technology and heightened awareness of anti-discrimination practices, Hill Wallack’s Employment & Labor Law Practice Group is available to provide assistance.

Susan E. Inverso is an associate of the firm where she is a member of the Administrative Law/Government Procurement Practice Group.