An employer may also be directly liable for damages resulting from the negligent supervision of its employee’s activities. Under this theory, the employer’s liability is direct, not vicarious (as under Respondeat Superior), and the employer’s duty of care may extend to actions outside the scope of employment.

In order to take a preemptive strike at those forms of liability, an employer must exercise reasonable care to prevent the harm that could potentially be caused by its employees. Therefore, an employer who endeavors to institute policies and procedures to prevent and correct discriminatory or harassing behavior, for example, will have an affirmative defense available against an action brought under the theories of vicarious liability or negligent supervision. To foster this preemptive strike, many companies have decided to institute various forms of computer monitoring programs, ranging from content-filtering to keystroke monitoring. Statistics show that the share of major U.S. companies checking employee e-mail messages has jumped from 14.9 percent in 1997 to 46.5 percent in 2001, according to a survey conducted by the American Management Association. Currently, the case law on this point has resolved the debate in the company’s favor, leaving employees with little recourse against employers that snoop through their e-mail. However, excessive monitoring may sometimes lead to a higher standard of care. Therefore, it may be preferable for your company to reserve the right to monitor e-mail at any time and without further notice, while focusing actual monitoring on investigations or suspicion of e-mail system misuse.


Q: I am writing a best practices document for internal e-mail distribution. Is there a public policy or guideline so that I don’t have to create one from scratch?
A: I have seen a number of articles on e-mail dos and don’ts that set forth guidelines that require e-mail users to be concise, stop and think before sending a message, avoid e-mail threads, limit the use of ALL CAPS and limit distribution lists. Michael Overly’s E-policy: How to Develop Computer, E-mail and Internet Guidelines to Protect Your Company and Its Assets (Amacom, 1998) is a great resource for exploring issues of e-mail etiquette and policy development.

However, I would not give up on the idea of creating a policy from scratch. Currently, there is no such thing as an ironclad policy that will safeguard employers from areas of exposure and risk. The entire concept of an e-mail policy remains in its embryonic stage, while employers are becoming increasingly embroiled in litigation stemming from misuse of workplace e-mail. Given the patchwork of inconsistent rules that currently extend to e-mail in the workplace, the safest course for businesses today is to assess their own electronic infrastructure and work environment, and tailor messaging policies to their particular business needs.