Virtually all employers are aware of the risks presented through malicious, defamatory or harassing use of the company’s e-mail system. Most employers have policies prohibiting the misuse of e-mails, and maintain the capability to retrieve and review e-mail messages sent via use of the employer’s system. As technology continues to change, instant messaging (IM) may become the next forefront in the struggle against electronic employee misconduct. Earlier this year, a federal appellate court for the first time found an employer liable for sexual harassment based upon IM misuse by a supervisor.
Policing IM use may not be as easy as reviewing employee e-mail traffic. Most IM systems used by employers do not maintain copies of sent messages. Some monitoring systems allow for keystroke by keystroke recreations of employee computer use. However, such reconstruction work is obviously burdensome and expensive. An increasing number of employees are using IM and e-mail accounts that are Web-based and independent of the employer’s network. These technologies further complicate the employer’s ability to monitor and to recover message traffic.
Some employers ban IM use on their systems, and scan employee computers to determine whether any IM programs have been downloaded. Employers that use IM as part of their communications systems may want to consider inclusion of monitoring and recording software.
Given courts’ increasing willingness to hold employers liable for misuse of their electronic communications systems, failure to prevent abusive messaging, or avoidance of system security features may defeat any defense by the employer that it did not condone the discriminatory or harassing behavior.