Study Alerts Employers of Growing E-mail Legal Issues

May 29, 2003 ( - The use of office e-mail as a source of evidence in discrimination, sexual harassment, and antitrust claims is on the rise, yet most employers are doing little to manage business e-mail records and preparing for the likelihood of e-mail discovery.

The number of companies that have been ordered by a court or regulatory body to produce employee e-mail is up to 14% from just 9% two years ago, with 5% saying business has been interrupted as a result of e-mail related lawsuits. However, only 34% of employers have a written e-mail retention and deletion policy in place today – the same figure reported in 2001, according to American Management Association’s (AMA) 2003 E-Mail Rules, Policies and Practices Survey, co-sponsored by the ePolicy Institute and Clearswift .

Further, while nine out of 10 employers have installed software to monitor incoming and outgoing e-mail, only 19% are using technology to monitor internal e-mail among employees. However, “o ff-the-cuff, casual e-mail conversations among employees are exactly the type of messages that tend to trigger lawsuits, arm prosecutors with damaging evidence, and provide the media with embarrassing real-life disaster stories. The fact that 90% of respondents send and receive personal e-mail at work and 66% of companies lack a policy for deleting nonessential messages, compounds the problem,” says Nancy Flynn, executive director of The ePolicy Institute and co-author of E-Mail Rules: A Business Guide to Managing Policies, Security, and Legal Issues for E-Mail and Digital Communication.

Not A Blind Eye

Yet, this is not to say employers have ignored the ever expanding world of office electronic communication that now consumes a quarter of the average employee’s workday. Over half (52%) of the 1,100 employers polled monitor e-mail, 75% have put written e-mail policies in place and 22% have terminated an employee for violating e-mail policy.

Additionally, the use of technology to monitor e-mail and control message content has increased. Over 40% of employers report utilizing software to control written e-mail content in 2003, compared with 24% in 2001.

The concern lies in only 23% of companies that take the opportunity to couple e-mail monitoring software with employee education. “Most employers drop the ball when it comes to educating employees about e-mail risks, rules, and responsibilities,” says Flynn. “While 75% of organizations have written e-mail policies in place, only 48% offer e-policy education to employees, and merely 27% offer e-mail retention/detention training.”

To help turn this trend around, Flynn outlines a “Three-E” approach to e-risk management:

  • establish written e-mail rules and policy
  • educate the workforce about risks and policy compliance
  • enforce e-mail policy with policy-based content security software that works in concert with the organization’s established e-mail rules and policies.

A Bug’s Life

Despite 86% of employers agreeing that e-mail has increased efficiency in the workplace, the corporate e-mail systems are not without their flaws. Over three-quarters (76%) of respondents say that they have lost time in the last year due to e-mail system problems, with 35% estimating half a day lost, and 24% reporting more than two days lost. Among the workplace problems e-mail has caused:

  • disabled computer systems (38%)
  • business interruptions (34%)
  • computer viruses (33%).

Spam is also a growing concern. Forty-seven percent say spam constitutes more than 10% of all their e-mail and 7% report spam represents over half of all e-mail received. A separate report from CNET cautions employers to take the spam threat seriously as sexual harassment complaints may begin to arise from employees offended by the material, even if companies are not the source of such messages. The liability could lead to hefty civil fines if managers know that porn spam is a problem and do not address it (See Porn Spam Becoming Employers Problem ).

More information on the survey process can be obtained by contacting AMA’s Roger Kelleher (212/903-7976 or For a free review copy of E-Mail Rules contact Amacom’s Irene Majuk (212/903-8087 or ).