Many employers already have electronic communications    policies on using e-mail and the Internet in the workplace. But with advancing technology, employers are finding themselves facing new issues and liabilities, especially with instant messaging and cell phones that have camera and/or video capabilities.

Does your electronic communications policy address these new technologies and accompanying issues?

Get the Message on Instant Messaging

Instant messages (IMs) increasingly are being used in the workplace, whether sanctioned by the employer or not. In a survey conducted by the American Management Association (AMA) last year, 31 percent of the more than 800 responding companies reported that their employees use
 IMs in the workplace and that 78 percent of workplace users downloaded free IM software from the Internet (instead of getting the software from their employers).

The problems caused by IM exchanges are no different than problems caused by e-mail use. Because IMs are even more informal and conversational than e-mail messages, however, they perhaps create a greater risk of inappropriate jokes, gossip, rumors, disparaging remarks,   sexual, romantic, or pornographic content and confidential information about the company, a co-worker, or a client. The use of IMs by employees can also result in decreased productivity.

Because of those risks, electronic communications policies should explicitly address the use and content of IMs, prohibiting inappropriate content, such as harassing, discriminatory, defamatory, fraudulent, obscene, indecent, embarrassing, or intimidating messages. Your policy should also notify employees that, like e-mails, all IMs sent through company software or computers are subject to monitoring.

In addition, the use of IMs on a company's computer system also creates a virus risk. Despite the ever increasing use of IMs in the workplace, however, most corporate virus software isn't equipped to scan IMs for viruses. In fact, only 11 percent of organizations responding to the 2004 AMA survey reported employing software to monitor, purge, retain, and otherwise control
IM risks.

With respect to document retention, many IMs, even though they may contain legitimate business-related communication, aren't being retained by companies, especially if employees are using IM software that wasn't provided by the employer.

If employees are using a Hotmail, Yahoo, AOL, or similar account to send IMs, that account doesn't automatically store each message that's sent or received on the company server as a company's own system would. That leaves you vulnerable to violations of document-retention laws and pretrial evidence-exchange obligations should litigation arise.
 
If employees are allowed to use IMs to conduct business, you should provide the necessary software, and IMs should be explicitly included in your document-retention policies and procedures.

See and Hear What You're Missing

Another growing concern for employers is cell phones with camera and/or video capabilities. If your employees are using them in the workplace, you run the risk of users being able to rapidly capture and transmit images of proprietary information, copyrighted material, trade secrets, operating procedures, personnel policies, client lists, and marketing and pricing information.

While it's easy to trace when an employee transmits a file from a computer, it's next to impossible to do the same for camera and videophones because the user can delete records of ever having transmitted the file.

Many companies have either banned camera and video phones altogether or prohibited their use in research and development facilities in an attempt to minimize the loss of trade secrets. Other companies allow camera and videophones in the workplace provided employees don't take
 pictures. That approach is hard to monitor, though.

Camera and videophones also create employee and customer privacy issues, such as concerns over their use in restrooms, changing rooms, or on-site workout facilities.  An employee may use a camera or videophone to capture inappropriate pictures of unsuspecting co-workers, causing potential liability and/or embarrassment to you.

In addition, the presence of camera and video phones in the workplace can expose you to sexual harassment liability if, for example, an employee views sexually explicit images contained on the phone in the workplace.

To minimize those risks, your electronic communications policy should explain in detail your rules with respect to camera and videophones in the workplace and the consequences for violating the policy.

Bottom Line

If you're adamantly opposed to camera and video phones in the workplace, you should address your concerns with your IT department. There's technology available that works as a jamming device so that when a person with a camera or videophone enters a designated wireless privacy zone, a transmitter signal automatically disables the phone's imaging software.

That means you can allow camera and videophones to operate in certain areas but disable the imaging capabilities in others, such as human resources, laboratories, or research areas.

As with all your company policies, your electronic communications policy should be incorporated in your handbooks and manuals, and you should require all employees to sign and return a form acknowledging and agreeing to the policy. The signed acknowledgment form should be retained in the employee's personnel file.

Copyright 2005 M. Lee Smith Publishers LLC. This article is excerpted from *New York Employment Law Letter.* Read more about the print newsletter and the New York attorneys who
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