Susan's Guide to E-Mail and the Internet in the Workplace


Copyright © 1999 The Bureau of National Affairs, Inc. All Rights Reserved. This excerpt of Guide to E-Mail & the Internet in the Workplace by Susan E. Gindin is published with permission of The Bureau of National Affairs, Inc.




A. Workplace E-Mail

B. Workplace Internet Use

C. Offsite Internet Activity and Personal Web Sites

D. Other Internet-Related Workplace Issues


A. Employee Interests

B. Employer Interests


A. At-Will Employment and the Private-Sector Employment Relationship

B. Unionized Employment Relationship

C. Public-Sector Employment Relationship


A. Privacy Cases

1. Invasion of privacy tort claims

2. Electronic Communications Privacy Act and State Wiretap Statute Claims

3. Fourth Amendment claims

4. Constitutional right to privacy claims

B. Labor Cases

C. Harassment Cases


A. Privacy Claims

B. Unionized Labor Cases and Employer Electronic Monitoring

C. State Statutes Limiting Employer Electronic Monitoring

D. Additional Considerations for Government Employers

1. First Amendment considerations

2. "Public record" status of public workplace internet records


A. Statutory Claims

1. Electronic Communications Privacy Act and state wiretap statutes

2. Federal and state statutes protecting lawful off-duty activities

B. Common Law Claims

C. Government Employees and Constitutional Claims

1. First Amendment

2. Fourth Amendment

3. Constitutional right to privacy


A. Information Security

B. Personal Web Site as Résumé

C. Telecommuting

D. Electronic Recordkeeping



APPENDIX A - Guidelines for Employers

APPENDIX B - E-Mail and Internet Use Policies (E.I. du Pont de Nemours & Company)






Workers with Web access typically spend five to ten hours per week to send personal e-mail or search for information not specifically related to their jobs. . . . Popular entertainment sites, such as ESPN's Sport Zone, where visitors can check sport scores, and the Sony Corporation's, where they can play Jeopardy, sustain heavy traffic during the work day. As everything from CD's to cars go on sale over the Web, some employees are also spending more time shopping on line.[1]

The Internet[2] has become a pervasive presence in the American workplace. Two-thirds of employees in medium and large companies in the United States now have Internet access, compared with fifteen percent only two years ago, according to a sampling of 500 companies surveyed by the IDC Corporation.[3] Another survey indicated that by the end of 1997, 28.5 million Americans were accessing the Internet from work.[4]

The Internet offers many opportunities for companies. Companies using the Internet can reduce operating costs, because human tasks can be automated, data can be transferred more efficiently, and the company needs less real estate and inventory.[5] In addition, companies using the Internet can monitor their competition, quickly retrieve information, and facilitate communication with employees and customers.[6] The establishment of a site on the World Wide Web [7] enables companies to operate on a larger scale, and easily expand product lines.[8]

However, in addition to using the Internet, especially the World Wide Web and e-mail[9] for work-related purposes, employees are also using the Internet for personal use, whether for sending personal e-mail messages, playing games, downloading pornography, ordering goods online, checking stock prices, or gambling. Accordingly, many issues have arisen involving employee e-mail and Internet use.[10] Employers are grappling with how much, if any, personal use of the Internet and e-mail to permit in the workplace. Employers are also grappling with the question of whether to monitor Internet use and whether to block access to certain Internet sites.[11] According to recent surveys, more than one-third of employers monitor their employees' e-mail and Internet use.[12] It is notable, that in a 1997 PC World survey, nearly two-thirds of the employees who responded said that their employer has the right to monitor their workplace Internet use as long as they are previously informed of the monitoring.[13]

Employers are also grappling with the difficult issue of whether to restrict employee Internet and e-mail use when the employee is off-duty and off the workplace premises. This issue may arise when the employee's Internet use affects the reputation of the employer, for example, where an employee's personal Web site includes an embarrassing reference to the employer.

Furthermore, Internet technology has created additional opportunities for employers as well as dilemmas regarding its use. For example, Internet technology facilitates telecommuting[14] which offers advantages for both employers and employees. However, telecommuting also creates dilemmas as to how much control the employer should have over the employee's electronic communications in light of the fact that the computer equipment is maintained in the employee's home.

As e-mail and Internet use increases in the workplace, there are likely to be many Internet-related disputes, including those concerning employment relations, privacy, freedom of speech, intellectual property, and record-keeping issues. Many workplace disputes involving the Internet will be resolved according to traditional labor and employment law. However, because of uncertainties, as well as differing opinions, regarding appropriate uses of the Internet in the workplace, the Internet has intensified workplace disputes. The Internet also raises many entirely new questions. For example, questions are raised because Internet technology eliminates boundaries, between the home and the workplace as well as between state and national borders. Consequently, the resolution of Internet-related disputes will often require the application of case law and statutes which specifically address electronic issues.

This guide examines the legal issues that can arise as a result of Internet use in the workplace, and is meant to guide employers and employees in avoiding Internet-related workplace disputes. Chapter II briefly introduces many of the issues which have arisen as Internet use in the workplace increases, including questions regarding e-mail, workplace Internet use, off-site Internet activity and personal Web sites, information security, electronic record-keeping, and telecommuting. Chapter III considers the competing interests of employers and employees, and Chapter IV discusses established workplace laws.

Chapters V through VIII discuss separately the case law, statutes, and constitutional provisions that have been applied, or are likely to be applied, in resolving the issues which have arisen as Internet use in the workplace increases. Workplace e-mail is discussed in Chapter V, workplace Internet use is discussed in Part VI, and personal Web sites and off-duty Internet activity are discussed in Chapter VII. Other Internet-related workplace issues, including information security, trademark infringement, telecommuting concerns, personnel records, and electronic record retention are discussed in Chapter VIII. Finally, Chapter IX concludes with recommendations for avoiding, and where necessary, resolving, workplace conflicts which arise from Internet and e-mail use, followed by appendices containing guidelines for employers and sample e-mail and Internet use policies.  


A. Workplace E-mail

"Oops! I haven't beaten anyone so bad in a long time." [E-mail message sent by Los Angeles police officer regarding the 1991 Rodney King case][1]

The problems underlying e-mail use are numerous. For example, the medium is treated so informally that people tend to write e-mail messages without much thought. As indicated by one commentator: "'In the litigation environment, it is often electronic mail that contains the most damning admissions. . . . [I]n email, people don't take the care they would were they writing formal correspondence, and they tend to say things they don't intend to say.'"[2] Also, the recipient can easily (and surreptitiously) forward the e-mail to innumerable people, as well as alter the content of the e-mail. In addition, e-mail can just-as-easily be sent to unintended recipients by mistake. With one unintended click in the e-mail system's address book, a message intended for one recipient will be sent to the entire organization or to an entire Internet discussion group. Another problem is that e-mail messages can easily be forged, as seen in a situation involving a disgruntled investment bank employee who forged e-mail messages sent in the name of company officials.[3]

Furthermore, e-mail communications may have a long life. Even if they have been deleted, e-mail messages can usually be retrieved from a variety of locations, including the network, local hard drives, and backup tapes.[4] E-mail sent or received on an employer's computer system is also discoverable[5] and is subject to review by law enforcement officials in criminal investigations.  

There has already been much litigation involving e-mail, including several high-profile legal cases.[6] Based on e-mail, employers have been sued by employees for invasion of privacy,[7] for defamation,[8] and for harassment.[9] Also, an employer has sued a former employee to enjoin him from sending bulk e-mail to current employees,[10] and criminal charges have been brought against former employees based on e-mail.[11] In spite of the hazards of e-mail use, e-mail offers such a convenient and economical means of business communication, that e-mail use in the workplace continues to grow. As indicated by a 1998 survey conducted by Ernst & Young, e-mail is now the primary communication tool used by business.[12] Because of the potential hazards of using e-mail, employers must caution employees about what they write when communicating via e-mail. Also, employers must decide whether to allow some personal use of the workplace e-mail system, and employers must decide whether to monitor workplace e-mail.[13]

 B. Workplace Internet Use

"We tell people, don't go to a site that you wouldn't walk into physically and lay your business card on the table."[Seattle law firm's position regarding workplace Internet access][14] 

In addition to using the employer's Internet for work-related purposes, employees may use it to shop on-line, research personal issues, play games, download pornography, and gamble. Employers are faced with how much, if any, personal use of the Internet should be allowed. Employees have been fired or disciplined for "surfing" the workplace Internet and for downloading objectionable sites.[15] In fact, a 1997 survey of employers, conducted by PC World, revealed that 20% had disciplined employees for inappropriate Internet use by suspending their Internet use or discharging them.[16] For example, a Washington, D.C. law firm suspended an employee's Internet privileges when the firm discovered that he was using his desktop computer to access pornographic materials via the Internet. He had sent a pornographic image from the Internet to a printer, where a co-worker saw it and complained to management.[17] Also, an employee of a state agency was fired for repeated visits to sexually-explicit Internet sites on the agency's computer after he had been warned to stop.[18]

C. Offsite Internet Activity and Personal Web Sites

"It upset me that someone was spending so much time digging into my personal Web site and reading everything and giving it to my boss. . . I didn't feel like my boss needed to act like my parents."[Employee's position regarding her employer's reaction to her personal web site][19] 

Another question arises regarding employees' Internet activity which is conducted while off-duty and while off the employers' premises. Some employees have been disciplined or fired as a result of their off-duty, off-site Internet activity as well as for personal Web sites.[20] Quoted above is Lizz Sommerfield, an Internet engineer who calls herself "SexyChyck" on her personal Web site.[21]  Her personal Web site includes photos of herself wearing leopard-pattern underwear, and it also provides hypertext links[22] to pornographic sites.[23] While Ms. Sommerfield was neither disciplined nor discharged by her employer as a result, she objects to the fact that her employer asked her to remove a reference to the employer from the Web site.[24]

However, another employee did lose his job as a result of his personal Web site. The employee was fired from his position as a New Media Specialist in a Michigan marketing firm because the content of his personal Web site was offensive to some of the other employees of the marketing firm.[25] The fired employee wrote experimental fiction, which he posted on his personal Web site.[26]

Another employee, a U.S. Navy serviceman nearly lost his job as a result of his off-site Internet activity, but was successful in fighting the discharge.[27] The serviceman, who had indicated in his confidential America Online profile that he was gay, successfully sued to enjoin the Navy from discharging him under the Navy's "Don't Ask, Don't Tell" Policy.[28]

D. Other Internet-Related Workplace Issues

"The only secure computer is one that is turned off, locked in a safe, and buried twenty feet down in a secret location--and I'm not completely confident of that one, either."[statement of computer security expert][29] 

There are a number of other Internet-related workplace issues which have arisen. For example, the Internet has exacerbated security problems which plague computer systems. A mid-1990s survey of U.S. information security managers conducted by the National Computer Security Association revealed that more than half of the 250 information security managers who responded had encountered Internet-related security breaches in the prior year.[30] Other Internet-related workplace issues are raised when a former employee makes reference to a former employer in postings on Internet discussion groups, or on his personal Web site. For example, Playboy Enterprises brought a trademark infringement suit against a former Playboy model who included frequent references to Playboy trademarks on her personal Web site.[31]

The Internet and e-mail also raise questions regarding employer record-keeping. Employers should plan for the destruction of electronic records just as they do for paper records.[32] Additional questions are raised when employer records are shared via a company intranet [33] or extranet.[34] For example, there are questions regarding whether employees should have access to their personnel records which are maintained electronically.[35]

Other Internet-related workplace issues are raised when the employer permits employees to telecommute. Over eleven million Americans were telecommuting to the office in 1997, up 30 percent from a few years ago and "the number is expected to reach more than 14 million by 2000," according to a survey by FIND/SVP, Inc.,[36] a research, advisory, and business intelligence firm. Another survey, conducted by the Olsten Center, revealed that 51 percent of North American companies permit employees to telecommute, and 74 percent of those companies expect their use of telecommuting to increase in the next year.[37]

While it is important that employers stay in close contact with telecommuting employees, questions are raised regarding the amount of contact and control which the employer should exert over the Internet and e-mail use of telecommuting employees. Professor Arthur Miller raised an interesting question regarding the privacy of telecommuters in Harvard University's Privacy in Cyberspace course held in Spring 1998:

[I]magine that your company encourages telecommuting, and you have started working from home. Most of your work is now done over the Internet, including all communication with clients and supervisors. You even spend one or two hours a week at the "virtual water-cooler," socializing with your telecommuting co-workers. Your home computer is connected to the company network. How much privacy should you expect on your home computer, now that it is also your work computer?[38]

The resolution of telecommuting issues[39] will become more urgent with the increase of telecommuting and the decrease in traditional "9 to 5" working hours. Because of the uniqueness of cyberspace, we can expect many more issues to arise.


[1] Amy Harmon, On the Office PC, Bosses Opt for All Work, and No Play, N.Y. Times, Sept. 22, 1997 at A1, C11. Back to text

[2] For an excellent explanation of the nature and workings of the Internet, including a detailed description of e-mail, Internet discussion groups, and the World Wide Web, see ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996, aff'd 117 S.Ct. 2329 (1997). Back to text

[3] Harmon supra note 1. Back to text

[4] IntelliQuest Information Group, Inc., Latest Intelliquest Survey Reports 62 Million American Adults Access the Internet/Online Services (Feb. 5, 1998) <>. Back to text

[5] Cyber Cost-Cutting, Den. Post, July 30, 1998, at C1. Back to text

[6] Stephanie Armour, Executives Put the Internet to Use as a Business Tool, USA Today, Mar. 1998, at 1. Back to text

[7] The World Wide Web, also referred to as WWW or simply the Web, is an information service that makes collections of information available across the Internet through hypertext links. Back to text

[8] Cyber Cost-Cutting, supra note 5. Back to text

[9] E-mail is the electronic version of regular mail. Back to text

[10] In response to the need of employers to monitor employee Internet use, several companies now sell "Internet Management Software". This software, which analyzes Internet and intranet usage, can be used to monitor the electronic actions of employees. See, e.g., WinWhatWhere Corp., (visited Oct. 23, 1998) <>. See also Current Company Policies [Week 8], Privacy In Cyberspace, Berkman Center For Internet & Society, Harv. Univ. (visited Sept. 15, 1998) <>(reporting monitoring by many types of employers, including corporations, universities, stock brokerage firms, school districts); and Carl Kaplan, Big Brother as a Workplace Robot, Cybertimes, N.Y. Times On The Web, July 24, 1997 <>. Back to text

[11] Many employers use filtering software to block objectionable sites. See, e.g., Cyber Patrol (visited July 23, 1998) <>. But see Matt Richtel, Filter Used by Courts Blocks Innocuous Sites, Cybertimes, N.Y. Times On The Web, June 23, 1998 <>(indicating that filtering software often mislabels innocuous sites, thereby reducing the filtering software's usefulness). Back to text

[12] James A. Martin, You Are Being Watched, PC World, Nov. 1997, <> (reporting that in a 1997 study by PC World, one third of companies reported monitoring their employees' Internet use, with another 12% planning to begin this type of monitoring within the next year; and further that large companies (with more than 1000 employees) are twice as likely to monitor than small and midsize companies). See also E-Mail Snooping Is OK In The Eyes Of The Law, Wall St. J., Mar. 19, 1996, at A1 (reporting results of a 1996 survey of 500 executives by the Society for Human Resources Management, in which 36% said they looked at employee e-mail and employee electronic work product). Back to text

[13] James A. Martin, Employees Say It's Okay to Monitor--As Long as They're Informed, PC World, Nov. 1997, <>. Back to text

[14] When telecommuting, employees work at home by using computers which are connected to office systems. Back to text


[1] Adam J. Conti & James W. Wimberly, The Developing Law of Cyberspace (Jan. 1996) <> (quoting e-mail message sent by L.A. police officer, Lawrence Powell, regarding the 1991 Rodney King case). Back to text

[2] Dan Goodin, Email Still Dangerous in Business, News.Com, Jan. 20, 1998 <,25,18245,00.html?pfv>(quoting attorney David H. Kramer). Back to text

[3] Charges over Smith Barney Email, Cnet, Aug. 20, 1998 <,4,25511,00.html>(reporting that the former employee had sent various messages, including one, purporting to be from the CEO of the investment bank's parent company, which said, "'The officers of Salomon Smith Barney need your help. A climate of bad ethics and questionable morals has taken over the firm...The moral compass has gone adrift....'") See also E-mail Harassment Case Takes New Twist, USA Today, Sept. 16, 1998 <> (reporting that the employee had pleaded guilty to second-degree harassment charge). Back to text

[4] See, e.g., Peter H. Lewis, What's on Your Hard Drive? If You Want Privacy, It Pays to Find Out What Data Your Computer Saves And How to Erase Information That the Delete Button Hardly Touches, N.Y. TIMES (Oct. 8, 1998) <>. Back to text

[5] See, e.g., Fed. R.Civ. P. 34. See also Geanne Rosenberg, Electronic Discovery Proves an Effective Legal Weapon: Looking for Evidence in Discarded E-Mail, N.Y. Times, Mar. 31, 1997 at D5. Back to text

[6] See, e.g., U.S. v. North, 713 F. Supp. 1452 (D.D.C. 1989)(involving the Iran-Contra investigation and criminal prosecutions in which Oliver North and John Poindexter unsuccessfully argued that their e-mail messages sent via the National Security Council computers which they had deleted but which were preserved on backup tapes should not be admitted into evidence); the 1991 Rodney King beating case in which e-mail admissions were revealed, see Conti & Wimberly supra note 1; and United States v. Microsoft, in which Microsoft sought to have special master Lawrence Lessig disqualified based partly on e-mail messages Lessig had sent to employees of Netscape Communications, Microsoft's competitor, Petition for a Writ of Mandamus and Motion for Stay of Proceedings, (D.C. Cir. Jan. 16, 1998) <>. The Justice Department and Microsoft are using old e-mail of Microsoft and its competitors to bolster their respective positions. Steve Lohr, Antitrust Case Is Highlighting Role of E-Mail: U.S. and Microsoft Test Messages and Memories, N.Y. Times, Nov. 2, 1998, at C1. Back to text

[7] See discussion, Privacy Cases infra V-A. Back to text

[8] See Meloff v. New York Life Insurance Co., 51 F.3d 372 (2nd Cir. 1995), discussed in text accompanying Employee Interests, infra III-B, note 12. Back to text

[9] Amie M. Soden, Protect Your Corporation from E-Mail Litigation: Privacy, Copyright Issues Should Be Addressed in Policy, Corp. Legal Times, May 1995, at 19. Back to text

[10] Intel Corp. v. Hamidi, No. 98AS05067 (Cal. Super. Ct. (Sacramento), Nov. 24, 1998) (issuing preliminary injunction against former Intel employee, and his organization, FACE Intel (Former and Current Employees of Intel), ordering defendants to stop sending mass e-mail messages, critical of Intel's personnel policies, over the Intel system to current Intel employees. The former employee had sent messages from different locations and during late-night and early morning hours to sidestep Intel's ability to block the mailings, and refused Intel's demand to cease the mailings. The court rejected the former employee's claim of a constitutional right of access, finding that "Intel's proprietary computer system is not a public forum, as it is designed for business purposes, and the internal employee e-mail address list is not published for use outside of company business." Id. The court also rejected defendants' reliance on Cal. Civ. Proc. 527.3, which "deprives courts of jurisdiction to restrain persons from communicating about labor disputes in a lawful manner." The court found that although the content of the defendant's e-mail messages seem to meet the statute's definition of labor dispute, the manner of delivery of the e-mail constitutes an unlawful trespass to chattels, and therefore, the statute is inapplicable. Id.). See Intel Scores in Email Suit, CNET, Dec. 4, 1998 <,4,29574,00.html>, Court Orders Former Employee to Stop Sending Employees Anti-Intel E-Mail, Elec. Com. L. Rep (BNA) at 1399 (Dec. 16, 1998), and defendant's FACE Intel Web site, (visited Dec. 21, 1998) <>. Back to text

[11] See discussion of Smith Barney harassment case note 3, supra, and trade secret misappropriation cases at Competing Concerns, Workplace E-Mail, infra III, note 21. Back to text

[12] Media Central: Email; Primary Tool of Business Communication, NUA Internet Surveys (May 11, 1998) <> The poll showed that 36 % of those responding to the poll use e-mail more frequently than other communications tools; compared to 26% using the telephone, and 15% favoring face-to-face meetings. Back to text

[13] See further discussion of workplace e-mail issues infra V. Back to text

[14] Carrie Johnson, Firms Fight Out-of-Line Online Use: When Mudwrestle.Com Comes To The Office, To Peep Or Not To Peep?, The Recorder, Jan. 28, 1998 <> (quoting attorney Timothy Nielander, Preston Gates & Ellis, regarding the firm's position on employees accessing the Internet at work). Back to text

[15] See, e.g., Johnson, supra note 14; and Martin, You Are Being Watched, PC World, Nov. 1997, <> . See also Harmon On the Office PC, Bosses Opt for All Work, and No Play, N.Y. Times, Sept. 22, 1997 at A1. Harmon notes that just as software has been developed to monitor and restrict employee Internet use, Web sites have been developed to assist employees in using the workplace Internet without detection by the employer. See, e.g., Don's Boss Page (visited Aug. 27, 1998) <>(including Stealth Surfing: Learn how to surf the web on company time without being caught!). Back to text

[16] Martin, You Are Being Watched, supra note 15. Back to text

[17] Johnson, supra note 14. Back to text

[18] Martin, You Are Being Watched, supra note 15. See further discussion of workplace Internet use issues, Workplace Internet Use, infra VI. Back to text

[19] Bill Dedman, It Isn't Just Big Brother Who is Watching, N.Y. Times (Jan.12, 1998) <> (quoting Lizz Sommerfield regarding her employer's reaction to her personal Web site). Back to text

[20] Id. Back to text

[21] (visited Aug. 25, 1998) <>. Back to text

[22] A hypertext link is "a selectable connection from one word, picture, or information object to another. . . .The most common form of link is the highlighted word or picture that can be selected by the user . . .resulting in the immediate delivery and view of another file." Whatis?com (visited July 31, 1998) <>. Back to text

[23], supra note 21. Back to text

[24] Id. Back to text

[25] Cameron Barrett, How Cameron Got Screwed (visited May 17, 1998) <>. The employee notes that when he was employed, he had signed an "At Will Statement" regarding his employment status; this statement is also posted on his Web site at <>. Back to text

[26] Id. Back to text

[27] McVeigh v. Cohen, 983 F.Supp. 215 (D.D.C. Jan.1998). See discussion Privacy Cases, infra V-A. and Statutory Claims, infra VII-A. Back to text

[28] 10 U.S.C. 654 (1994). See further discussion of personal Web sites and off-duty Internet activity, Personal Web Sites and Off-Site Internet Activity, infra VII. Back to text


[30] Society for Human Resource Management (SHRM), Technology Raises Legal Questions, Visions (May/June 1996) (visited May 8, 1998) <>. See further discussion of information security issues, Information Security, infra VIII-A. Back to text

[31] Playboy Enters. v. Welles, 7 F. Supp. 2d 1098 (S.D. Cal. 1998), aff'd 1998 WL 750954 (9th Cir. Oct. 27, 1998). See further discussion infra Part VIII.B. Back to text

[32] See further discussion of electronic record retention issues, Electronic Recordkeeping, infra VIII-D. Back to text

[33] "An intranet is a network that is contained within an enterprise. It may consist of many interlinked local area networks and also use leased-lines in the wide-area network. It may or may not include connections through one or more gateways to the outside Internet. The main purpose of an intranet is usually to share company information and computing resources among employees." Whatis?com (visited July 15, 1998) <>. Back to text

[34] "An extranet is a private network that uses the Internet protocols and the public telecommunication system to securely share part of a business's information or operations with suppliers, vendors, partners, customers, or other businesses." Whatis?com (visited July 15, 1998) <>. Back to text

[35] See further discussion of electronic personnel records, Electronic Recordkeeping, infra VIII-D. Back to text

[36] FIND/SVP: Homework Means Working At Home, NUA Internet Surveys (July 8, 1997) <>. Back to text

[37] Olsten Center: Telecommuting's Time Has Come, NUA Internet Surveys (Jan. 23, 1998) <>. Back to text

[38] Arthur R. Miller, This Week's Hypothetical [Week 8], Privacy In Cyberspace, Berkman Center For Internet & Society, Harv. Univ. (visited May 14, 1998) <>. Back to text

[39] See further discussion of telecommuting issues, Telecommuting, infra VIII-C. Back to text

Copyright © 1999 The Bureau of National Affairs, Inc. All Rights Reserved. This excerpt of Guide to E-Mail and the Internet in the Workplace by Susan E. Gindin is published with permission of The Bureau of National Affairs, Inc. 

Susan's BiographySusan's ArticlesSusan's LinksSusan E. Gindin's HOME page

Susan's Guide to E-Mail