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Does Your Association Have a Written Policy on Employee E-mail Use?

It’s important for REALTOR® associations, as employers, to have clear written policies on how their employees may use the association’s e-mail system and whether the association will monitor such use. This is important because unless your state law provides otherwise, courts generally look at the issue of e-mail monitoring by weighing the need for employers to maintain a safe and productive workplace against any reasonable expectation of privacy employees may have in those e-mail communications. Courts say that those “reasonable expectations” are based on what the employer communicates to its employees through policy statements and practices.

E-mail use and monitoring are particularly tricky because the existence of e-mail passwords may create the illusion of privacy. It’s important that you dispel that illusion by spelling out the following:

  •     The e-mail system belongs to the association and the association has the right to determine how it is used. The association also has the right, for legitimate business purposes, to monitor e-mail use -- whether it be e-mails the employee sends or receives.
  •     Your association’s policy can be whatever you feel is appropriate for your staff and organizational culture. Some organizations state that the e-mail system is to be used only for business use, never for personal use. Others state that only de minimus personal use is allowed, especially in states where an absolute “no personal use” policy may not be upheld unless it is strictly enforced. Yet other organizations simply advise their employees that they will only monitor e-mail when management has reason to suspect abuse.
  •     E-mails should be drafted thoughtfully and sent with the same sensitivity as one would draft and send paper memos. Because of the speed and informal nature of e-mails, many employees don’t realize that e-mails are discoverable during litigation, can be sent to others (or everybody) by accident, and are not really ever deleted from the system. In fact, deleted e-mails are routinely archived and can be retrieved.
  •     Some communications are too sensitive for normal e-mail transmittals and either should be encrypted or not sent by e-mail at all. This is particularly important to remember with communications that relate to employee disciplinary actions, wage deductions, and other confidential information in which the employee rightfully has an expectation of privacy.
  •     Intimidating, hostile, offensive or harassing messages should not be allowed. Your association will be just as vulnerable to lawsuits when inappropriate or unlawful messages are sent by e-mail as you would be if similar communications were spoken or appeared in other media.

As with any employment policy, you must be consistent, not arbitrary or discriminatory, in enforcing your e-mail policy. It’s also a good idea to get your employees to consent to or acknowledge receipt of your e-mail policy in writing. And, of course, you should articulate your policy frequently to make sure that new employees know and old employees don’t forget that the e-mail system belongs to the association and they must use it according to association rules.