In addition to managing employee Internet and e-mail usage, employers should acknowledge and attend to the increased use of instant messaging communications in the workplace. According to a recent survey done by the Northeast Human Resources Association, 85 percent of companies do not have a policy in place regarding the use of instant messaging in the workplace. It's time to consider the issue more closely.

What is instant messaging?

Instant messaging, or "IM" as it is often referred to, provides for real-time or instantaneous "live chat" communication, which has contributed to its exponential growth as a favored method of electronic communication within, as well as outside, the office. Most often employees download instant messaging software free of charge from an Internet service provider or Web mail service directly onto the employer's computers without the employer's knowledge, authorization, or consent.

The most significant distinction between instant messaging and e-mail is the rapidity of communication between the parties. Instant messaging is real-time. It allows text messages to appear immediately on a recipient's computer screen, in contrast to its electronic predecessor, the e-mail message, which is not real-time and is directed to an "inbox", where it remains resident on the company server for retrieval by the recipient. Instant messaging also represents a seemingly stealth method of communication during business hours for employees, many of whom mistakenly believe that the "instant" in instant messaging renders the transmission undetectable by the employer. The fact is that instant messages, just like e-mails, can be monitored, stored, and printed as hard copy documents.

Employees may also presume instant messaging transmissions are permanently deleted each day. There is, however, software available that allows employers to monitor employees' instant messaging communications for excessive use or abuse during the workday and to detect violations of the company electronic communications policy.

What to do about it

Now that you know what IM is, what should you be doing about it in your company? Here are three important steps you can take:

Re-evaluate and update your electronic communications policy - In an effort to keep pace with the constantly evolving technology of electronic communications in the workplace, many employers have amended their electronic communications policy to include instant messaging. Instant messaging can be a productivity-enhancing tool for expeditious business communications with coworkers, clients, customers, vendors, and the like. On the other hand, productivity may be adversely affected by employee abuse or overindulgence in personal instant messaging communications during business hours, resulting in the loss of valuable employee productivity. Therefore, employers should amend their instant messaging and electronic communication policies to meet the needs of the specific industry, business entity, or corporate client.

An employer should identify and define, to the extent possible, acceptable and prohibited electronic communications in its policy. The policy should reserve the right of the employer to monitor, review and investigate employee instant messaging activity using the company equipment and network. Although many employers indulge limited, or casual, personal instant messaging by employees, the policy should set forth the privacy limitations of individuals who utilize the employer's computer system for personal instant messaging, email, and other electronic communications. Additionally, the consequences of electronic communication policy violations should be incorporated into the employer's disciplinary procedures and protocol contained in the employee handbook.

Disseminate the new electronic communications policy - Employers should promptly disseminate new or amended electronic communications policies addressing IM to all employees with access to a company computer. Acknowledgement forms, either written or electronic, are encouraged to verify that each employee received, read, understood, and agreed to adhere to the electronic communications policy. Electronically disseminating a new or revised policy, however, without evidence of an executed acknowledgement form, is insufficient notice, as the unfortunate employer realized in the matter of Campbell v. General Dynamics Government Systems Corporation.

In that 2004 case, the US District Court for the District of Massachusetts held that an at-will employee was not required to participate in an arbitration proceeding prior to initiating litigation in accordance with General Dynamics' company policy. The court determined that, although the company disseminated its arbitration policy to its employees via electronic mail, General Dynamics was unable to establish that the employee had read the employer-generated e-mail, which detailed the new policy. General Dynamics actually was able to produce an electronic tracking log that indicated the employee received and opened the e-mail that contained the new policy. Nonetheless, the court found there was insufficient evidence that the employee ever actually read the e-mail he had opened. As a result, General Dynamics was unable to prove the employee had actual notice of the requisite pre-litigation arbitration policy, and therefore the employee was able to circumvent General Dynamics' company policy and commence litigation against it.

Engage in uniform enforcement of the new policy - An effective electronic communications policy, as with any company policy, requires uniform enforcement by management and human resources in any investigation conducted or disciplinary action taken. Failure to do so may compromise an otherwise valid defense that an adverse employment action against an employee for excessive use or abuse of instant messaging or other violations of the electronic communications policy was based on a legitimate business decision. Management and human resources personnel should be properly trained in the new instant messaging and electronic communications policy. Moreover, the implementation, investigation and enforcement of instant messaging and electronic communications policies require collaboration with the human resources department, adequately trained management personnel, and coordination with legal counsel to effectively achieve the employer's business objectives.

A final caution

If ignored by employers, instant messaging may result in potential legal liability as well as protracted and costly litigation. IM is a new technology portal for sexual harassment, discrimination, and otherwise inappropriate communications in the workplace. Employees may utilize IM to transmit inappropriate text or photos or to engage in sexually harassing or discriminatory communications with other individuals. In some instances, the employer may be held liable for the acts or conduct of its employees resulting from IM communications. For example, if an employee engages in sexually harassing IM exchanges, the recipient of the IM transmission may allege sexual harassment or a hostile work environment. Such IM exchanges may result in complaints of sexual harassment or discrimination claims for which the employer may be found legally responsible should the matter proceed to litigation.

Kimberly Y. Jones is a member of the Business and Litigation Practice Groups at Looney & Grossman LLP and is also a NEHRA member. She can be reached at kjones@lgllp.com