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Even in cyberspace, your boss is watching
Sunday, March 19, 2000 By Torsten Ove, Post-Gazette Staff Writer
At CoManage Corp., a computer software company in Pine where the employees play Foosball and race remote-control cars when they feel like it, the boss doesn't read anyone's e-mail or worry whether someone is wasting time surfing the Web on a notebook computer.
As long as people get their work done, everything's cool.
"We call it the 'reasonable person policy,' " said Dave Nelsen, the decidedly relaxed chief executive officer. "We have no restrictions whatsoever on e-mail or Internet use other than to be reasonable. We believe that you can mix your personal life with business. It makes for happier, more productive employees."
It's the same "work-hard, play-hard" approach, he says, shared by many of the dot.com start-ups driving the new economy.
But Nelsen's attitude certainly isn't shared by the majority of U.S. companies, where the rules of computer use in the office have evolved to mean management can -- and will -- snoop into your computer files and fire you for what you write, look at or even receive.
Last year, The New York Times fired 22 people at a pension office in Virginia for passing around potentially offensive e-mails, including some that a spokeswoman said included sex jokes and pornographic images.
A month earlier, Xerox Corp. fired 40 workers for spending work time -- in some cases up to eight hours a day -- surfing porn and shopping sites on the Web.
Closer to home, PNC Bank fired three employees in its Downtown office two months ago for circulating e-mails containing offensive material downloaded from the Internet among colleagues.
And back in 1995, David Evans of Hopewell lost his job at a Conrail office in North Fayette after he sent an e-mail to his manager that the company felt was threatening.
"All I did was write a crummy little e-mail message," Evans said at the time, "that they took the wrong way."
As e-mail and Internet use at work proliferates, more companies are making it clear through written policy that they won't put up with monkey business on company computers. Some, such as Ameritech, have a zero-tolerance policy on all personal use of equipment. Others, like CoManage, don't believe in any restrictions.
Most firms fall between the extremes. PNC's policy bans Web sites featuring pornography or gambling but allows some personal e-mail use -- as long as it isn't offensive. Defining that term is up to management, of course.
Alcoa has a similar policy, allowing for "appropriate" use of the Internet and e-mail. Examples of inappropriate use would be visiting porn sites or sending hate mail.
PPG Industries' policy is nearly the same, and spokesman John Ruch said an employee at a plant outside the United States violated it about six months ago by sending him a porn video by e-mail.
"I'm pretty broad-minded, but I thought it was offensive," he said. "I didn't even know the person. I don't know what his motivation was for sending it. But the individual was disciplined. I don't know what happened to him, exactly, but I assume he was fired. There's not a whole lot of tolerance."
According to a 1999 survey by the American Management Association, the majority of U.S. companies monitor their employees in some way. Twenty-seven percent of companies snoop into e-mail, up from 15 percent in 1993. Of those companies that have electronic monitoring policies, 84 percent have informed their employees about them.
The National Workrights Institute in Princeton, N.J., says some companies have taken monitoring a step further, examining the Web sites their employees are visiting on their lunch hours.
Labor and workers' rights groups such as the Communications Workers of America and the Privacy Rights Clearinghouse are increasingly concerned about this brand of electronic spying, but companies say they're merely trying to protect their interests.
Based on statistics and any number of case histories, they have good reason to be wary.
According to Vault.com, a company that reports on workplace issues, 54 percent of the companies it surveyed recently said they had caught employees browsing Web sites unrelated to work. An Elron Software study said more than 50 percent of employees have received pornographic, sexist or racist e-mails at work. And of 200 midsize and large companies surveyed by Websense Inc., a maker of filter software, a third reported having fired employees for misusing the Internet.
Federal courts have consistently ruled that companies own their equipment and have the right to control how it's used.
Several big cases in recent years have paved the way.
One of the most celebrated involved Michael Smyth, a sales employee for Pillsbury Co. in Philadelphia, who had sent e-mails to a colleague that included threats to "kill the back-stabbing bastards" in reference to his supervisors. After he was fired, Smyth sued to get his job back, saying the company's policy assured employees that e-mail was confidential and couldn't be used against them. The company said the threats were discovered when someone found a hard copy of the e-mails at a printer.
In the end, a federal judge dismissed Smyth's claim.
"Plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system," wrote the judge. "We find no privacy interests in such communications."
By now, enough of these high-profile horror stories have circulated that most office workers realize they shouldn't be sending nasty notes about the boss by e-mail or downloading naked pictures of Pamela Lee Anderson at their work
stations.
But even the more innocuous messages people send and receive every day are subject to monitoring and often end up as evidence in discrimination lawsuits -- the dumb-blonde jokes, the Top 10 lists of stupid things downloaded from a Web site, that off-color joke about the priest and the hooker.
"There are three huge myths about e-mail," said Matthew Meade, a lawyer at the Pittsburgh law firm Katarincic & Salmon, who writes e-mail policies for companies.
"First is the 'presumption of privacy.' Obviously, you have no expectation of privacy. Second, 'deletion equals destruction.' But there is always a backup. Third, 'this stuff does not come up in litigation.' It does, all the time, particularly in sexual harassment cases, and it's great evidence."
So good, in fact, that some attorneys call e-mail the "smoking gun" of the 1990s. Incriminating e-mails have nailed blue-chip corporations from Microsoft to Chevron, which in 1995 paid $2.2 million to four female employees to settle their claim that they were harassed by sexually explicit messages, including a list of "25 reasons beer is better than women."
The fear of such suits is the engine driving the race to install policies, even more than the need to check up on productivity or protect intellectual property.
The cyberspace experts say every company that has computers should have a policy, make sure employees know what it says and then monitor computer use to head off potential lawsuits.
"Employees should realize it's a BC -- a business computer -- and not a PC," said Kristin Accipiter, spokeswoman for the Society of Human Resource Management, a trade group in Virginia.
Policies are purposefully vague, and the repercussions of misuse vary according to corporate culture.
Most companies don't have specific guidelines limiting online activity, for instance. But excessive Web surfing tends to be pretty obvious to a system administrator armed with tracking software.
When Compaq Computer fired 20 people in 1996, for example, the company could prove that each of the employees had logged onto porn sites 1,000 times.
That kind of chronic misuse isn't uncommon. A Nielsen Media Research survey revealed that employees at IBM, AT&T, Apple, NASA and Hewlett-Packard visited the Penthouse Web site thousands of times a month, according to Windows Magazine.
E-mails can be similarly tracked with special software that spares a system administrator from reading thousands of messages. One example is Interscan E-Manager, which Excello Specialty Co., an Ohio auto-parts maker, uses to flag incoming and outgoing e-mail for certain objectionable words.
If those words do turn up, however, firings are usually a last resort. A reprimand is often enough.
Steve Olson, a partner at the city law firm Kirkpatrick & Lockhart who writes e-mail policies, said one local financial-services company -- he wouldn't say which one -- recently had to discipline a middle manager who had been sending off-color jokes and Internet photos, usually late at night from his home computer, to colleagues he thought would enjoy them.
One didn't, though, and complained. The company was able to avoid a likely sexual harassment claim with a "last-chance" agreement in which the manager would be fired if he sent any more inappropriate messages.
"You do it at your own risk," said Olson of employees passing around jokes and pictures. "You need to know your audience."
Sometimes, workers also need a kick in the pants to realize what's at stake.
Two years ago, Sauer Inc., the Lawrenceville-based construction company working on the new Steelers stadium, introduced an e-mail and Internet policy drafted by Matthew Meade. Managers explained to employees that they would review the results of electronic monitoring after one month.
"We found some Web sites that were questionable," said Tim Steitz, vice president. "We found people accessing the ESPN Web site during work hours. They signed off on the policy and we told them what we were going to do. But it didn't sink in until we showed them a printout of what they were doing. We had to sit down with some of them."
No one was fired, but some workers had their Internet access stripped.
"Ours is not a zero-tolerance policy," said Steitz. "I guess it comes back to what's reasonable. The policy does state that e-mail is not for personal use, but it's like the telephone. You can say it's not for personal use, but people do make personal calls."
Legally, though, there's a difference between phone calls at work and e-mail at work.
Under the Electronic Communications Privacy Act of 1986, an amendment to the federal wiretap law, companies can't monitor personal phone calls. Yet e-mail remains fair game.
It's a double standard that, as the National Workrights Institute points out, allows a company to monitor an e-mail conversation between you and your spouse that would be illegal to listen to were it a phone conversation.
What all of this means for employees is obvious: Assume you are being watched.
According to "Netiquette," a book by Virginia Shea that explores the ethical minefield of modern electronics communications, employees should consider every e-mail public information.
"Don't send anything over e-mail," the author cautions, "that you wouldn't want published on the front page of USA Today."
The trend toward e-spying seems likely to continue, and it may soon be that the only employees with real freedom in the workplace will be the savvy cyberjockeys like those at CoManage.
Or the large computer company in Boston that asked Meade to write an e-mail policy -- but then changed its mind.
"I sent them a very hard-line policy," he said. "The comment I got back was that it would severely alter their corporate culture."
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The electronic mail system hardware is company property. Additionally, all messages composed, sent or received on the electronic mail system are and remain the property of the company. They are not the private property of any employee.