It was a couple of telling E-mails that helped bring down Bear Stearns with the subprime loan mess crashing all around. It was also another reminder that E-mail at work, including personal E-mail, can not only get you fired; it can get you prosecuted.
Though many companies include E-mail rules in their employee contracts, workers continue to send nonwork-related E-mails on the job. Of those who took an msnbc.com survey that asked how often workers send or receive personal E-mails on the job, 14 percent said they do "constantly." An additional 31 percent said "very often." More than 50 percent said they "sometimes or occasionally" use personal E-mail at work, and only 9.3 percent said they "never do."
Even if most workers may get away with it, companies are using E-mail as grounds for firing. According to a survey by the American Management Association and the ePolicy Institute, over half of all employers fire workers for E-mail and Internet abuse. The survey also found that of the 43 percent of companies that monitor workers' E-mail, 73 percent use technology tools to automatically monitor it and 40 percent assign an individual to read and review the E-mail manually.
The rules of E-mail are still changing—a new etiquette is forming around the rights of E-mail at work. We now live and work in a world in which our electronic actions are easily monitored and sorted. But the battle between personal privacy and a company's right to monitor its computers and BlackBerrys is still violent; lawsuits are flying, and jobs are being slashed.
Here are some things to consider before logging on at work:
You don't own your E-mail. In some respects, technology has outgrown the law. "Dress code and lockers have changed slowly—office etiquette has been perfected over a long period of time—but E-mail has changed so fast," human resource attorney William Nolan of Squire, Sanders & Dempsey LLP says. But the basic rules of ownership still apply. "No—it's not personal when you're sitting in their building, at their desk, on their computer," Nolan says.
Freedom of...text? Some of us are just too loose with the notes we send at work. "People E-mail what they never would've put in a memo," Nolan says. When E-mail-related cases go to trial, it may be hard for an employer to make a case for its reasons for reading personal E-mails, because the "jury will be thinking, 'I don't want people looking at my stuff,' " Nolan says. But the law protects the employer, because the E-mail was sent using the company's equipment.
Working from home. If all the gray area of E-mail laws weren't enough, people working from home on a mix of equipment face a new set of problems. The use of, say, your own BlackBerry and the company's computer poses a strange problem of differentiating work E-mail from personal E-mail. Especially if you have both delivered to your hand-held device. Something to remember, says Laurent Duperval, president of the work and personal communications firm Duperval Consulting, is that no matter where you are, "before sending or opening an E-mail, ask yourself: 'If my boss was looking over my shoulder right now, would he or she approve?' This is the litmus test and can also be applied to anything an employee does during the course of a workday."
Just because you can... ...Doesn't mean you should or even need to. For Los Angeles-based Ken Siegel, a psychologist and president of the management consulting firm Impact Group, E-mail is the opposite of productivity. And being unproductive is often reason enough for firing. "You could have a phone conversation that would take three minutes to resolve an issue, but on E-mail it would take five or eight E-mails over a course of a couple days," Siegel says. He uses "No E-mail Fridays" in his office to promote more direct communication, because, Siegel says, "E-mail is a fabulous conflict-avoidance technique by which misunderstandings are created and promoted." Bottom line: E-mail (especially personal) at work doesn't get the job done.
There are no secrets. The Bear Stearns debacle proves that even higher-ups are getting fired over what they thought were private E-mails. There is something about sending E-mail that seems personal—maybe we believe that the only person reading it will be the one listed in the "to" box. And that leads us to divulge all sorts of information we would not have advertised if, say, the entire company were cc'd. Siegel, who advises management-level workers on workplace proficiency, says that's where the problems come in. He advises his clients to "send E-mail with the assumption that the person you really don't want to read it will read it." In the case of Bear Stearns, this would have been the thousands of investors and homeowners who believed the subprime loan system would work.
What attorney-client relationship? After Structured Settlement Investments fired Scott Sidell, Sidell says he found out the company continued to read his personal Yahoo E-mails, including those between him and his lawyer—intercepting their legal strategy for his arbitration claims over the lost job. To be fair, says Anthony Oncidi of Los Angeles-based Proskauer Rose LLP, using his personal E-mail at work can be compared to "meeting with his lawyer in the company's lunchroom and them overhearing it—and then complaining." The attorney-client communication is private, Oncidi says, unless you forfeit it.
Saved passwords. Sidell's case is especially contentious because he was no longer an employee but may not have signed out of his Yahoo account when he was fired, leaving his account accessible on the work computer for up to two weeks—a popular E-mail feature. But the convenience of saving a password at work is not worth the risk, says Oncidi. "Most people have high-speed Internet access from their homes now—it's not the case anymore that an employee must access E-mail over the employer's system anymore," Oncidi says, so just wait until you get home.