1. EMPLOYEE USE OF COMPANY E-MAIL MONITORING & PRIVACY ISSUES

2. TECHNOLOGY ISSUES-OF-THE-DAY  80s – Proliferation of the PC  90s – Internet  00s – Privacy in the workplace

3. PRIVACY IN THE WORKPLACE: THE ISSUE Has the attention of the U.S.’s largest corporations  There are presently 110 Chief Privacy Officers among such corporations.  By 2002, it is expected the number of CPOs in such corporations will rise to between 500-1000. Source: John Schwartz, (Chief Privacy Officers Forge Evolving Corporate Rules), New York Times, 2/12/01.

4. EMPLOYER USE OF COMPANY OWNED TECHNOLOGY  90% of all businesses having more than 1,000 employees have e-mail and employees sent over 60 billion electronic messages in 2000  Internet use: - 171 million in 1999 - 304 million as of March 2000  Employers’ electronic monitoring of employees’ communications has doubled since 1997 BACKGROUND

5.  The ACLU estimates that the number of employees monitored in the workplace jumped from 8 million in 1991 to 30 million in 1999  Nearly 3/4ths of major U.S. companies record and review their employees’ telephone calls, e- mail messages, internet searches and computer files  29% of U.S. companies block access to some internet sites

6.  50% of such companies have had to discipline employees for misuse of company internet or e- mail and 25% had discharged employees for doing so  Recently, Dow, The New York Times & Xerox reported mass firing for employee misuse of company’s technology  A recent poll found 89% of Americans concerned about invasions of privacy

7. WHY THE MONITORING?  Employee use of company-owned hardware & software for personal use during work hours affects productivity  Such conduct can also lead to all manner of legal problems:  Sexual harassment  Discrimination  Anonymous web posting (trade secrets & defamation)  Harm to 3 rd parties  Discovery in litigation

8. FACTS ABOUT INTERNET USAGE  “Surprising Internet Use Statistics” by Websense, Inc. (http://websense.com/management/stats.cfm)  Sample:  62% of U.S. companies’ employees surf for sexually explicit material on the internet  The #1 search term used is “sex” and “pornography/porno” is the 4 th most used search term

9.  72% of all internet porn traffic occurs during working hours  During working hours, 9% of employees earning less than $35,000 surf the internet for a new job while 11% of those making between $75,000 and $100,000 search for a new job  Other data estimates that the cost to companies from this type of lack of productivity is $5.3 billion

10. ONE RESULT OF MONITORING Employee Invasion of Privacy Claims have increased 3,000% in the past ten years

11. FOUR REASONS TO MONITOR  Failure to monitor employees can result in substantial exposure from within the company or by parties outside;  Active monitoring by management can avoid disclosure of company trade secrets and defamation of the corporation;  Maintaining an effective monitoring system will discourage dissemination of internal electronic communications that could be used against the company in the event of litigation; and  Employee productivity and even retention can be maintained through an effective policy and monitoring system

12. HOW SHOULD AN EMPLOYER RESPOND TO THESE ISSUES?  HR and IT work with your legal counsel to formulate a monitoring program

13. GENERAL PURPOSE FOR COMPANY POLICIES  Insulate employer from liability for unauthorized employee conduct  respondeat superior doctrine

14. WHAT SHOULD YOU INCLUDE IN YOUR PLAN AND HOW SHOULD IT BE IMPLEMENTED?  Scope will depend on type of business involved  Have management team agree on what level is needed  Once level decided, run monitoring software for a week; see what it reveals

15. WRITTEN MONITORING PLAN  Disclosure to employees prior to hiring and periodically thereafter that all e-mail, voicemail, Internet access and computer files are subject to monitoring  Notify employees that the technology they are provided by the company is company property and is to be used for business purposes  Explain to employees that despite the fact that they are given password to access your system, they should not have an expectation that the system is “private”

16.  Notify employees what, if any, materials they will not be allowed to transport in and out of the company system  Have an agreed upon electronic “document” destruction plan  Reiterate that your non-harassment and non- discrimination policies apply to company email

17.  Notify employees what the penalties for violating the policy are or could be. This should include reprimand, demotion and termination; and  Make sure you get something in writing from your employees to acknowledge receipt of the written policy when issued and if updated