Outbound E-Mail Being Vetted for Data Leaks

Law.com is reporting that new data has been reported in a study that claims 38% of large employers in the U.S. are monitoring outbound e-mails for data leaks.

And it's not just inappropriate use of e-mail that has employers scrutinizing employees. Social networking sites like Twitter and Facebook are also compounding data leak fears, companies reported, with 8 percent saying they had fired an employee for misuse of social networks in the past 12 months. Another 17 percent had disciplined an employee for violating blog or message board policies, up from 11 percent the year before.

No surprise, say some employment attorneys, noting the ease with which employees can swipe confidential information or taint a company's image has Corporate America on edge. "It's almost impossible to keep up with what might be walking out of the door or sliding out the door," said Anthony Oncidi, chairman of the labor and employment department in the Los Angeles office of New York-based Proskauer Rose. Oncidi said that employers are smart to have an ongoing monitoring program that includes reading or analyzing e-mails. That makes it much easier to spot suspicious behavior, he said. Plus, if trade secrets are stolen, the monitoring records will give the lawyers the evidence they need to bring a lawsuit.

The Proofpoint study was based on the responses of 220 e-mail decision-makers at U.S. companies with more than 1,000 workers. It was conducted via the Internet in June. Among the study's other findings:

• 33 percent of large companies employ staff whose primary or exclusive job is to monitor the content of outbound e-mail, up from 15 percent in 2008.

• 34 percent said their business had been affected by the exposure of sensitive or embarrassing information, up from 23 percent in 2008.

• 18 percent had investigated a data loss event via a blog or message board in the past 12 months.

• Nearly a third -- 31 percent -- terminated an employee for violating e-mail policies, up from 26 percent in 2008.

Sounds pretty extreme, said veteran employment attorney Christopher Mills, a partner in the Murray Hills, N.J., office of Atlanta-based Fisher & Phillips. Monitoring employee e-mail hurts morale, he said, and it could give employers a bad public image should an employee sue for invasion of privacy. "You don't want to be known as the employer from the pages of 'Mad Men,' who still applies 1960 rules to the 21st century workplace," Mills said.

Moreover, Mills argued that not everything is trade secret material. Monitoring employees to safeguard Coca Cola's secret recipe is one thing. But spying on workers to protect pizza customer lists? "That is just going to be viewed by a court as going overboard," Mills said. "When you really take a look at what is a trade secret, it's really fairly narrow."