As an employer, Human Resources Director, or Risk Management Supervisor, ask yourself this question: “Do our employees think about the legal risk of sending communications over the Internet?” If you’re like most companies, your answer would be, “It’s highly unlikely.” It is a very common problem in the workplace for an employee to believe that their electronic communications are transient, temporary and, once deleted, untraceable and therefore harmless.

The fact is that email, faxes and even cell phones leave a trail. Just one email sent by your employee to the employee of a different company goes through an average of four different computer systems. This creates a trail that makes the email real, traceable, and permanent.

As an industry leader in computer and forensic technology for the past 20+ years, we have documented, during examination of electronic systems, employees frequently saying/saving things in emails or storing things in a computer that they would never say in Nowhere. the rest. Whether an employee deletes a potentially harmful or inflammatory email or even an employee deletes an email on her behalf, it doesn’t protect anyone. In fact, in the end it could harm everyone involved.

If an employee complaint or misconduct has reached the level where you, as the owner/supervisor, need to consult an expert in computer and technology forensics, one of the first areas reviewed is the removal of documents and/or emails. These items cause red flags during an examination of the equipment, and the original items can and most likely will be found and/or rebuilt. It is very important to understand that the intentional destruction of evidence is a serious crime and, if proven, could land one in jail.

An example of a computer message in a short case dates back to the infamous trial of some members of the Los Angeles police for the 1991 beating of Rodney King. One of the officers created a computer message that read, “…I haven’t hit anyone that hard in a long time.” This obviously became admissible in court.

A more recent example is one where we as a company were hired in a defamation case. The libeler was using the Internet to post messages on a public bulletin board that were defamatory and defamatory against a competitor in the same field. This person felt that using “anonymous” emails and postings would increase his own standing within the professional community itself. What the label did not have was the traceability of emails to their home, cell phone and company computer systems. We were able to locate the electronic trace and with this information obtain, on behalf of the client, a court order to seize the equipment in order to create electronic system image copies. As a result, to keep the matter private, Libel agreed to a major out-of-court settlement.

As the owner/supervisor, it is up to you to consider and take great care in educating your employees about what should and should not be put in writing. In addition, it is also up to you to make your employees aware of how the written word is transmitted when it is read.

We have now asked and answered two very important questions. First, most employees do not consider the legal risk of electronic communications. Second, as an owner/supervisor why it is crucial that you understand the potential legal ramifications. The remainder of this article is dedicated to helping you create and/or update your current policies.

In today’s litigious society, both large and small companies must have company policies. These policies have traditionally covered areas from dress codes to vacation policies. In the last five years, companies have begun to adopt IT policies, which are usually found in the employee handbook. As a professional IT and technology forensics company, when we are called to examine hard drives and/or servers because a company suspects systems misuse, we also discuss the company’s IT policies with the appropriate IT supervisor or manager .

In many cases we have found that most policies do not adequately cover what is necessary in the age of computers and electronic communications. Companies must have a very clear policy on email and technology use. One of the most important ones that is not usually covered, and unfortunately to the detriment of the employer, is the email retention policy. Since many industries are governed by different and specific federal and/or state statutes on how long information must be retained, your policy should reflect these guidelines.

The policy should be as specific as possible about what types of communications are maintained and for how long. Make it clear that there are business and legal reasons for the company to keep such information. Information from emails, as well as from other electronic systems, can be used in many types of cases, including: harassment, discrimination, antitrust, retaliation, Americans with Disabilities Act, insider trading, accounting fraud, improper disclosure of trade secrets and more.

REMEMBER: Willful destruction of any kind of evidence relevant to a current or pending lawsuit contained in the email or email attachment is a felony and, if proven, could land you in jail.

As the owner/supervisor, please take a moment to review your current IT or company technology policy. If your company doesn’t currently have an IT or technology policy, get one! While you will need to ensure that your individual business needs are met, here are some topics to consider including in your usage sources:

• Ownership of electronic information

• Technology usage monitoring

• Acceptable Use of Company Technology.

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If you currently hold meetings with your employees or publish a company newsletter, these are great places to educate your employees. Take advantage of these opportunities to let them know that there are certain things they need to keep in mind when sending or responding to emails. Employees should be advised to be cautious and not make statements that could be considered a legal conclusion. Let your employees know that they must use the knowledge and experience within the company by picking up the phone and calling their supervisor or the Human Resources Department.

When educating your employees about the content of an email or using other forms of electronic trackable technology, train the employee to ask themselves these simple questions:

• Should I put this in the email or should I call?

• Would you write this knowing that it can exist forever?

• Would you put this on a postcard and mail it?

• Would I like to see this printed in the newspaper?

• Would I like this to reach the hands of my company’s competition?

• Would I want this to reach the hands of my worst enemy?

Electronic communications are not transitory, temporary or untraceable. Email is evidence. Proper education and policies go a long way toward preventing both the employee and the employer from ending up in a potential lawsuit trying to explain the written word.

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