Email Today - Revising Your Company Policy

• January 2006

Business communication has changed dramatically over the years and we have reached a point where the majority of business is now conducted over email. New legislative requirements and developments in litigation have meant emails are now in the spotlight and employers need to ensure they have a workplace policy that will protect their company.

The Workplace Surveillance Act 2005 (the Act) came into force on the 7th October 2005 and effectively prohibits employers from monitoring employee emails unless they have given notice. In addition to this recent litigation cases such as C7 and James Hardie, have highlighted the potential embarrassment the disclosure of email correspondence may cause.

What this means is that whilst on one end of the scale an employer is prevented from conducting email surveillance, on the other end emails could be subpoenaed and used as evidence against them in the event of litigation cases.

Fortunately protection can be obtained through an up to date workplace policy that complies with the Act. This will ensure employees understand that emails should be treated with the same level of caution as formal correspondence.

Giving Employees Notice

Under the Act an employer may only carry out surveillance if they have notified their employees in advance, and the surveillance is done in accordance with a policy. The Act requires an employer to provide written notice at least 14 days before the surveillance commences. Or for a new employee, they must be notified before they commence work.

Importantly this obligation on an employer extends beyond their immediate employees, and extends to agency workers, independent contractors, employees of subsidiaries, and volunteers.

Restricting Internet Access & Blocking Emails

Under the Act, an employer must not prevent email or internet website access by an employee. In addition to this the Act provides that an employer must not prevent or cause to be prevented, delivery of an email. In order to be exempt from these two provisions an employer must;

  • Be acting in accordance with company policy that has been notified to the employee; and
  • immediately notify the employee that the delivery of the email has been prevented.

Employers also must note that their policy must not prevent delivery of an email or access to an Internet website merely because an email was sent by or on behalf of a union, or because the Internet website or email contains information relating to industrial relations.

Implications for Non-Compliance

Any surveillance of an employee which is not notified surveillance is defined to be covert surveillance.

Covert surveillance is expressly prohibited under the Act unless it is authorised by a magistrate. A breach of the Act constitutes an offence, which is punishable by the imposition of a criminal penalty and employers could be fined up to $5 500.

Similarly non-compliance with legislation surrounding Internet access and blocking emails will incur the same penalties.

Email Evidence

Under the NSW Evidence Act 1995 emails can be subpoenaed for litigation purposes and recent court cases have underlined the growing trend for litigation based on email evidence.

One of the problems with the use of emails is that they are so conducive to informality. Whilst many of us are reasonably guarded in formal correspondence, we often do not apply the same of level caution to emails.

Employers should assess whether it is worth introducing rules about what communications they allow to be included in emails. With the level of wireless communication now available, emails can be sent without even being in the office. Considered a modern convenience, employees unwittingly leave a paper trail for litigators to scrutinise when things go wrong.

However sometimes it is not the email trail that causes the problem, it is the lack of one. Recently the Wall Street investment bank JP Morgan Chase had to pay $2.1 million in fines to settle charges that it failed to retain emails sought in investigations of stock exchange research analyst misconduct. Although many IT-based offerings exist to help companies manage their email storage needs, it is important that they enable emails to be retrievable on demand for as long as seven years.

As a result of the above concerns companies now require employees to apply the same rules to sending emails as they do in writing formal letters, particularly concerning major commercial transactions and industrial accidents.

Protecting Your Business

  • Employers will need to review any workplace policies on computer use and access to email and Internet websites and ensure that it is being undertaken in accordance with the Act.
  • Employers should consider introducing email guidelines to ensure a certain level of formality is adhered to and confidential information is not revealed in commercial transactions.
  • Employers will also need to ensure that all employees (including agency workers, independent contractors, employees of subsidiaries and volunteers) are aware of and understand those workplace policies on computer use and access to email and Internet websites.
  • Employers who do not currently have policies on computer use and access to email and internet websites should consider implementing those policies to ensure compliance with the Act and to ensure appropriate action can be take in relation to any discrimination, harassment or bullying issues which arise in the workplace

Should you require any further information or legal support in understanding the effect of the new legislation, or to revise your company policy please do not hesitate to contact our office.

This publication contains general information only. It is not provided as legal advice. Professional advice should be taken before any course of action is pursued, or any information herein relied upon.