Control risk by controlling e-mail content

By Nancy Flynn and Randolph Kahn, Esq.

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 e-mail and other electronic documents, employers can limit their liability risks and improve the overall effectiveness of the organization's e-communications.

Language that is obscene, racist, discriminatory, menacing, harassing, or in any way offensive has no place in the workplace. Use a written e-mail policy to ban language that could negatively affect your organization's business relationships, damage your corporate reputation, or trigger a lawsuit.

Real-life e-disaster story: Turning off customers through e-mail

After ordering a baby crib from an online furniture retailer, a new mother sent an e-mail message to the company's customer service department to express displeasure over a slow delivery. Needless to say, the customer service department's reply was not the answer the buyer was hoping for.

Dear Customer,

We got your feedback on doing business with our company. Obviously you never read the attached note we sent you the day after we received your order!!!! Also, our site says we will process your order within 2–3 days of receiving it, not drop it at your door. Further, our order process confirmation says allow up to 5 business days in transit while in the hands of the ground transportation service. We did everything we said we would do for you. Problem is you do not read. Please do not return to us as a customer, since you are exactly the type we do not want.

Our rating of you as a customer is: Ignorant and enjoys it.

Sincerely, Customer Service

Imagine the impact that this type of "customer service" would have on your organization's reputation and bottom line. Is it possible that your employees are insulting, defaming, harassing, or otherwise offending customers and vendors through e-mail? Couple content rules with employee education to ensure that electronic communications (external and internal) are as clean and clear as they are safe and secure.

What constitutes appropriate online content?

Instruct employees to compose businesslike messages that are free of:

  • Jokes (many jokes are told at the expense of an individual or group of people and may be perceived as harassing, menacing, or defamatory)
  • Obscene language and sexual content
  • Racial comments
  • Harassing or menacing comments
  • Negative or defamatory remarks
  • Ethnic slurs
  • Unsubstantiated opinions, rumors, and innuendoes

Sample content statement

Consider including language similar to the following in your e-mail content policy:

Employees may not use the Company's e-mail system, network, or Internet/intranet access for offensive or harassing statements or language, including disparagement of others based on their race, color, religion, national origin, veteran status, ancestry, disability, age, sex, or sexual orientation.

How to handle unsolicited messages that violate policy

Use your written e-mail policy to teach employees how to handle unsolicited, offensive e-mail messages. Protect employees by instructing them to report unsolicited and offensive e-mail to the appropriate supervisor. Explain that deleting, replying to, or forwarding banned messages may put the employee in the loop — making an innocent recipient party to the violation.

Don't take chances with content

If you have any doubt about your employees' willingness to adhere to the organization's e-mail policy, consider applying a technological solution to potential problems.

Content-filtering software that works in concert with your e-mail policy and that is programmed to detect and report employee use of banned language can help you can stay on top of policy violations. As an added bonus, programming your monitoring software to track competitors' names along with inappropriate language may alert you to any electronic communication that is taking place between your employees and competitors. What you don't know could hurt you. For instance, an employee could be planning to open a business or make a career move, courtesy of your customer lists, formulas, or other trade secrets.

Just be sure to put your e-mail policy into place before installing monitoring software. Remember: When you learn of employee misdeeds, you may have no choice but to take action. Failing to discipline employees for their misconduct may create liability as well. Your rules and policy should guide the technology, not the other way around.

Using conversational language

The most effective tone for electronic business correspondence is professional, yet conversational. How do you achieve that tone? Take the colleague, customer, and competitor test. Imagine that you are in an elevator crowded with colleagues, customers, and competitors. What tone would you use? What would you say? What information would you reveal, and what would you keep under wraps? If you wouldn't say it aloud while sharing close quarters with the people you work with, for, and against, don't write it in an e-mail message.

Maintaining e-mail's contextual string

E-mail is a contextual medium. As such, the meaning of any given message is typically linked to related messages. This characteristic makes e-mail a fast way to communicate, with a message often collecting valuable information as it moves from one person to the next. Unfortunately, speedy communication is not always safe.

When an e-mail message is taken out of context, the sender's meaning might be misinterpreted. An e-mail reply, when read in isolation from the message that triggered the response, also might be misunderstood. Litigators regularly take advantage of e-mail's contextual challenges.

Imagine a manager sending an e-mail message that reads, "Steve's team needs to have its draft to the committee by close of business today." Steve in turn shoots off this speedy reply: "I am all over Sue and Mary. Trust me; they will do what I say." Taken out of context, Steve's reply could be used to demonstrate that he is at best heavy-handed and domineering. In the worst-case scenario, Steve might be perceived as unprofessional, with a discriminatory, hostile, or dismissive attitude toward female employees.

Be sure to address context in your e-mail policy. If there is any chance that the meaning of a message will change materially if read in isolation from the message(s) that preceded it, instruct employees to attach all previous e-mail messages to avoid any potential confusion.

Recap and e-action plan

  1. Know that one of the most effective ways to control risk is to control content.
  2. Use your e-mail policy to ban language that is racist, sexist, obscene, menacing, harassing, discriminatory, or in any way objectionable or inappropriate.
  3. Support your written e-mail policy by using content-filtering software.
  4. Establish rules to ensure that the contextual string of e-mail is retained.

A clear e-mail policy and action plan regarding e-mail content in your company can help you to reduce risks and remain professional in your communications.

About the authors     This article was adapted from E-Mail Rules: A Business Guide to Managing Policies, Security, and Legal Issues for E-Mail and Digital Communication, by Nancy Flynn and Randolph Kahn, Esq. It is used by permission of the publisher, the American Management Association (AMA).

Applies to:
Outlook 2003