Originally from Dispute Resolution Journal

This article discusses the issues that can arise when the employer disciplines or discharges an employee for what the employer considers to be inappropriate use of its computer system to send e-mail or browse the Internet. It examines recent arbitration and court decisions and describes how federal and state laws apply in this sensitive area of law.

The use of the Internet in general and e-mail in particular has become an indispensable part of our day-to-day life at home and at work. E-mail serves as a major communications tool for business. In recent years there have been a number of arbitration cases stemming from employee misuse of e-mail and the Internet. Courts have also begun to encounter such cases.

The issues are what uses of e-mail and the Internet constitute misuse, and when should a misuse trigger discharge versus a disciplinary measure. The answers to these questions are not clear and there are no clear guidelines for arbitrators or courts to follow.

These issues are not simply academic. Yolanda Sanders has pointed out that the informality of e-mail “often encourages its users to lose their inhibitions and reservations and to communicate with an unusual degree of candor and recklessness.”1 This can lead them to say things that they would never dream of writing in a letter or memo, or saying to someone’s face or in a phone call. Sanders says that “the content of e-mail messages tends to be more irresponsible than the content of face-to-face communications” and “may include profanity and negative sentiment whereas in-person conversations will not.”2 As a result of e-mails’s ease of use and informal nature, some employees may make derogatory statements about a co-worker, circulate off-color or sexually explicit jokes or pictures, make bigoted remarks, or even make overt or implied threats.

More often the likely purpose behind an inappropriate e-mail will be to have fun. However, that motivation will not absolve the author of the e-mail from responsibility for violating the employer’s workplace rules and harming the employer or fellow employees.