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HAS BIG BROTHER REALLY ARRIVED?

By Staff

Women’s Business

June, 2005

Wendeen H. Eolis, CEO, EOLIS International Group, Ltd.

With the recent ruling awarding 30 million dollars to saleswoman Laura Zubulake who won her sex discrimination case against UBS with the help of subpoenaed e-mail messages, a Pandora’s box of issues is emerging regarding work product privileges in this new age of electronic communications. Many states now have laws requiring employers to preserve all electronic documents, including those generated by their employees on personal business.

If employees are advised, in advance, that e-mail and telephone resources are for business purposes only (except in emergencies), and that for quality control their telephone and e-mail communications may be reviewed (therefore, if they want a private communication, they must separate it from office equipment and office matters), then I think it is fair and reasonable to review telephone, computer, and Blackberry communications that are relevant to the business. The key to the reasonableness of this policy is making it clear in pre-employment interviews and in a personnel policy handbook. Otherwise I would be absolutely opposed.

In our office, employees are so restricted, except with express approval of a supervisor, in which case, for the period approved, their communications are not subject to company review.

More generally, I am opposed to scrutiny of private telecommunications and data on home computers, except where there is genuinely probable cause to believe they are connected to a felony. I believe that the current provisions of the Patriot Act provide overly broad powers to the government with respect to invasion of privacy.