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Instant Messaging Rules
By Nancy Flynn
AMACOM BooksCopyright © 2004 Nancy Flynn
All right reserved.
Chapter OneWhat Constitutes Appropriate (and Inappropriate) Instant Messaging Content?
One of the most effective ways for employers to reduce electronic risks is also one of the simplest. By requiring employees to use appropriate, businesslike language in instant messages (as well as e-mail and other electronic documents), employers can help limit their liability risks and improve the overall effectiveness of the organization's IM system and other e-communications.
Unfortunately, the speedy, real-time nature of IM-coupled with the fact that employees may be using it without management's knowledge and outside the boundaries of written rules and policies-may tempt some employees to write messages that are just too chatty for comfort, and to engage in inappropriate and potentially risky behavior.
According to a Blue Coat Systems survey of instant messagers in the United Kingdom, employees use IM at the office to gossip (80 percent), share music and video files (40 percent), exchange pornography (20 percent), and flirt (33 percent). More troubling is the fact that half of the employees surveyed report using abusive language and insulting customers and colleagues in instant messages.
This is precisely the type of inappropriate content (and potentially illegal content in the case of music and video file sharing) that can trigger lawsuits, drain employee productivity, and waste computer resources.
IM Rule #20: The easiest way to control instant messaging risk is to control written content.
Instant Messaging Content Must Be Monitored, Controlled, and Strategically Managed-Just Like E-Mail
Unfortunately, as the "2003 E-Mail Rules, Policies, and Practices Survey" reveals, many U.S.-based employers are still struggling to get a grip on employees' e-mail content. For these employers, the management of IM language and subject matter will likely prove daunting.
Less than half (48 percent) of the 1,100 organizations surveyed educate employees about appropriate and inappropriate e-mail content. The majority of employers (51 percent) rely on untrained employees to differentiate electronic copy that is clean and compliant, from that which contains the type of potentially damaging language capable of triggering lawsuits and other e-disasters.
Management's failure to educate employees about e-mail and IM risks, rules, regulations, and policies is a shortsighted and potentially costly oversight. An educated workforce is more likely to comply with rules and policies, and more important, e-policy education can help form a defense against a sexual harassment lawsuit or a hostile work environment claim.
As previously noted, an organization may be held legally responsible for an employee's misconduct including the transmission of offensive IM and e-mail content. However, the courts tend to take notice when an employer makes a reasonable effort to prevent a hostile work environment by establishing IM and e-mail policies and backing up those policies with comprehensive employee training.
Organizations that are eager to keep IM and e-mail content as clean, compliant, and risk-free as possible are advised to support policy and training programs with software tools. Unfortunately, many employers fail to take advantage of software to help control content-related risks.
Take Advantage of Software Tools to Control Instant Messaging Content
Only 40 percent of organizations surveyed by AMA, ePolicy Institute, and Clearswift use software to control employees' e-mail content. More troubling is the fact that merely 19 percent of employers use software to monitor the internal e-mail communications that take place among employees.
Management's failure to check internal e-mail is a disaster in the making. Off-the-cuff, casual e-mail conversations among employees are exactly the type of messages that tend to trigger lawsuits, arm prosecutors with potentially damaging evidence, and provide the media with headline-making e-disaster stories.
The facts paint a disturbing picture of workplace electronic communications: Two-thirds of employees use IM for personal conversations during working hours; 90 percent of employees send and receive personal e-mail at work; 66 percent of companies lack a policy for deleting nonessential e-mail messages; and 43 percent of regulated businesses have no e-mail retention policy in place.
Instant Messaging Creates a Written Record That Can Be Used as Evidence-For or Against You
Where we once used the telephone to exchange business and personal information, today we use IM and e-mail. By replacing informal phone chat with computer chat, we have created a process by which conversations are recorded and business decisions are documented electronically. The result is written ammunition that can help make or break your case, should a workplace lawsuit be filed, or the wrong message land in the hands of the media.
In the past, if a lawyer were trying to uncover what employees were saying, doing, or thinking at a given time, the best evidence might come from notepad doodles, appointment calendar scrawl, telephone message receipts, and other informal documents. With the advent of the workstation computer and the prevalence of IM and e-mail, there is an unprecedented amount of documented business communication available today.
An inappropriate instant or e-mail message is not merely written, sent, and forgotten. Message archiving capabilities on public networks allow people to log and store IM conversations without the other party's consent, just like e-mail. Responsible employers use enterprise IM or gateway IM products to save and archive IM transmissions. Consequently litigators and investigators today often have access to a library of IM documents (business records and personal messages combined) for use as evidence.
Give Employees Rules to Write By
To help reduce exposures and manage overall IM risks, responsible employers must establish and enforce policies governing employees' electronic writing. Settle for nothing less than good, clean commentary running through your employees' instant messages.
Good IM content is businesslike and free of obscene, harassing, defamatory, or otherwise offensive language. To guarantee your employees' content is as appropriate as possible, be sure to incorporate cyberlanguage guidelines into your IM policy.
Risks and Disasters Will Rise as Instant Messaging Use Increases
It's not hard to understand why some employees tend to play fast and loose with IM content. Instant messaging conversations are instantaneous, and they take place in real time-the electronic equivalent of popping into a colleague's cubicle for a quick, informal chat.
As an instant messager, you typically chat only with people you know, your buddies. You decide what names to add to your buddy (or contact) list. You determine whom to block from your buddy list. Consequently, some instant messagers may be tempted to be exceptionally free and easy with their language. After all, they reason, they are chatting with their buddies, their pals-trusted friends and family members who would never file a lawsuit claiming harassment, discrimination, or a hostile work environment-right?
Why Worry About Instant Messaging Content?
If you work in an unregulated industry, content concerns revolve around the use of inappropriate or abusive language that may trigger litigation, the intentional theft or accidental transmission of confidential data, and the unfortunate retention of personal and potentially embarrassing nonbusiness record messages.
Those working in regulated industries (financial services and health care, among others) face additional content-related risks, which are detailed in Part Seven.
Beware Hidden Readers
Instant messaging is equivalent to any other form of business correspondence and should be treated with equal care. Instant messages are business records subject to normal legal and regulatory rules for record retention and preservation. Consequently, the message you send today could return to haunt your organization in the form of evidence in a lawsuit or in headline-making news, to name two content-related risks.
Real-Life E-Disaster Story: Can Your Company or Industry Afford a High-Profile Instant Messaging Gaffe? Ask yourself, "How would I feel if this message appeared on the front page of a newspaper?" Two senior executives of Merrill Lynch experienced the sting of negative publicity firsthand when an e-mail message in which they posed the question above to caution 50,000 employees to be mindful of e-mail content was covered by the national business media. When drafting instant messages, think not only about your intended reader, but also about unintended or hidden readers. You never know when a disgruntled employee or vengeful ex-employee will share a message intended for your reader's eyes only with the media or other outsiders.
Would You Be Embarrassed If Management, the Media, or Mom Read Your Instant Messages?
Language that is obscene, racist, sexist, discriminatory, menacing, harassing, threatening, or in any way hostile or offensive has no place in the electronic office. Use your written IM policy to ban language that could negatively effect your organization's business relationships, damage your corporate reputation, trigger a lawsuit, or be used against you as evidence in litigation or an investigation.
Instant messages create written records that can be used as evidence for or against you during litigation or an investigation. If you would be embarrassed to have a comment uncovered by prosecutors or covered by the media, don't put it in writing and transmit it via IM or e-mail.
Instruct employees to compose instant messages that are businesslike and adhere to the following guidelines:
1. Jokes have no place in cyberspace. Typically jokes are told at the expense of an individual or group, and they may be perceived as harassing, menacing, or defamatory. Compounding the problem, IM is a cold medium that is devoid of intonation, facial expression, and body language. It is, therefore, easy for readers to misinterpret jokes.
Use your IM training program to let employees know that the no-joke policy extends to instant messages and e-mail only. You're not trying to create a somber, humorless work environment. You're simply trying to limit unnecessary electronic risks.
Let employees know that they are free to share clean, inoffensive jokes on the phone and face-to-face. But jokes of any kind, even those rated G, are banned from the computer system.
Real-Life E-Disaster Story: It Was No Laughing Matter When the Joke Triggered a Lawsuit
In one high-profile case, Chevron Corporation in 1995 was ordered to pay female employees $2.2 million to settle a sexual harassment lawsuit stemming from inappropriate jokes e-mailed internally by male employees. Among other gems, the offending jokes included one titled "Twenty-Five Reasons Why Beer Is Better Than Women."
Before instant messaging a joke to a buddy, consider if there is any possibility that the joke you find so funny might be offensive to someone else. If there is a chance that your intended recipient or a hidden reader will be offended by the language, tone, or content of the joke, don't send it. Better to err on the side of caution than to trigger a workplace lawsuit.
2. Keep instant messages clean of rumors, gossip, negative comments, and disparaging or defamatory remarks. Use your written IM policy to notify employees that they are prohibited from transmitting messages that could in any way cause harm or embarrassment to an individual or the organization. Ban the use of IM to send or receive rumors, to gossip, or to make negative comments and disparaging or defamatory remarks about employees, executives, the organization, clients, or other third parties.
3. Obscene language, harassing or menacing comments, and racial or ethnic slurs have no place in business instant messages. Remind employees that IM access is provided primarily for business use. Employees should therefore use business-appropriate language in all IM communications-personal as well as business record messages.
Instant Messaging Creates New Evidence for an Old Claim: Sexual Harassment
Although sexual harassment is an old claim to employers, the use of e-mail as evidence is relatively new. In 2001, 8 percent of employers reported that they have battled sexual harassment or discrimination lawsuits based on employee e-mail use.
Now, given the rise of workplace IM, employers should expect to see instant messages triggering sexual harassment claims and being used as evidence in harassment and discrimination cases.
Use your written IM policy and employee-training program to drive home the point that employees must avoid IM content that could trigger claims of a hostile work environment based on sexual comments or adult material. Prohibit employees from writing and sending instant messages that contain the following type of content:
* Sexual innuendos
* Off-color or "dirty" jokes (text, photos, art, or other graphics)
* Inquiries into or comments about another person's sex life, sexual history, or sexual preference
* Use of "pet" names (honey, sweetheart, and so on)
* Obscene language
* Sexual content of any kind See Appendix F for a sample sexual harassment policy.
Real-Life E-Disaster Story: E-Mail Reveals Negative Attitude Toward Women
A former employee of Microsoft sued the company for sexual discrimination, alleging that she was denied a promotion because she was female. Admitted into evidence were offensive e-mails from the woman's male supervisor. In one e-mail, the supervisor referred to himself as "president of the amateur gynecology club." In another, he called a female employee the "spandex queen." Other e-mail messages from the supervisor contained a sexual innuendo referring to male genitalia, a parody of a play entitled "A Girl's Guide to Condoms," and a news story on Finland's proposal to initiate a sex holiday.
While the court recognized that the e-mail was "not directly connected to Microsoft's promotion and termination decisions," the court nonetheless admitted the e-mail into evidence. By allowing the jury to hear evidence related to the supervisor's general office conduct, including his use of e-mail, the court permitted the jury to infer, if it wished, that the supervisor's attitudes toward women influenced his decision not to promote the former employee.
Don't risk a sexual harassment or discrimination lawsuit triggered by offensive IM content.
Excerpted from Instant Messaging Rules by Nancy Flynn Copyright © 2004 by Nancy Flynn. Excerpted by permission.
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