E-mails are more often being viewed by judges as evidence in employment law cases. Managers should change their e-mailing habits accordingly.

In addition to the official performance review, a court may look at e-mails related to a fired employee’s performance. That could be both good and bad for companies.

If the content of the e-mails is consistent with the company’s decision to fire the employee, a court might look at that favorable. But if a manager repeatedly praised the employee through e-mail, that’s a different story.

The best bet? Managers should understand that e-mail creates a permanent record and that they shouldn’t write anything they wouldn’t want to print out and keep in the employee’s personnel file.

Social networking sites have made it easier for disgruntled customers to bash a company’s reputation online. And, as recent court cases show, it’s getting tough for employers to protect themselves.

According to a recent survey by Deloitte, 74% of employees say it’s easy to damage an employer’s reputation using social networking sites (Facebook, MySpace, Twitter, etc.).

But just because employees are aware of the damage social networking slander can cause, it doesn’t mean they care.

In fact, the Deloitte study found that 61% of employees said they wouldn’t change what they do online — even if their activity was monitored by their employers. And half say an official company ban on negative comments wouldn’t change their behavior.

As these recent court decisions show, companies may have little recourse to respond after the damage is done:

1. Online comment wasn’t defamation

The owner of several restaurants was interviewed by his local newspaper, and the article appeared on the paper’s Web site. In response to one of the questions, the owner mentioned that he treats employees “with dignity and respect.”

Apparently the father of a former employee disagreed with him. He left a comment claiming his daughter was sexually harassed, and that the behavior was condoned by the owner. The company sued the commenter for defamation, but the case was thrown out. The judged ruled the comment was a matter of opinion and not subject to defamation laws.

2. Boss can’t read private forum

A group of employees had set up a private, invite-only group on Myspace. The purpose: “To vent about any BS” they had to deal with at work. Eventually, their boss got wind of the group, and needless to say, he wasn’t happy.

He asked an employee for the password, and she complied, afraid for her job. When he went to the site, the boss found disparaging comments directed at him and other managers. The two employees who started the group were fired.

They sued, claiming the company invaded their privacy. The court agreed — since the page was password-protected, the employees had a reasonable expectation that their comments would remain private. And company had no right to read the comments.

3. Confidential docs allowed to stay public

After a bank vice president was let go, he posted confidential company documents to a Web site. Allegedly, the documents exposed illegal activities.

The bank sued the owners of the Web site to force the removal of the documents. But the court ruled in favor of the site’s owners, saying they had a First Amendment right to keep the documents online. Also, the judge said taking them down would do little good, because they could have been copied and re-posted by other sites.

What can HR do?

That doesn’t mean you can’t fire any employee whose online activities hurt the company. Firing is OK in many cases — removing the damaging material is the hard part.

Your best bet? In your computer use policy, include a part banning conduct that damages the company’s reputation. Then monitor activity and discipline accordingly.

Does your company provide employees with cell phones or smartphones to use for business calls? If so, you may need to watch out for a big security concern.

A recent UK survey of companies and institutions revealed that 79% of employees conduct confidential conversations by cell phone, and 51% do so on a daily basis. However, only 18% of companies had security software in place on their phones.

Even businesses that carefully secure other communications may be unaware of the issue. Most people are used to making calls from standard, wired telephones, where security isn’t that big of an issue (unless the police or the FBI are wiretapping you). But cell phone signals can be picked up far more easily.

Cell phone service providers do provide some encryption with their services, but it is highly vulnerable.

What this means for your business is that such critical details as sales discounts, planned bids and sales leads, which are often discussed via cell phone, might fall into your rivals’ hands.

Problems could stem from a lack of communication between IT and management. If IT isn’t aware of what sort of calls are being made on the company-owned equipment, they may neglect to take proper security measures.

It’s important for IT to know what company-issued phones are being used for. That way, they can increase protection on the phone, if necessary.

What are your peers’ plans for adding new technologies next year?

Due to increased budgets, most companies plan to make their HR tech operations more efficient in 2010, rather than making new purchases, according to a recent survey by the International Association for Human Resource Information Management (IHRIM). Of the companies surveyed:

• 26% plan to “optimize currently implemented systems”
• 24% will implement previously purchased modules, and
• 19% will try to consolidate multiple systems under one vendor.

The good news: For most companies, the HR tech budget won’t go down. More than half of respondents said they’re spending will remain the same, 30% said it will increase, and 19% expect a decrease.

Among companies who will increase spending, they said they plan to invest more in:

• performance management systems (31.1%)
• business intelligence software (22.4%)
• e-recruiting and applicant tracking (21.3%)
• core HR management systems (20%), and
• onboarding programs (20%).

While many companies are reluctant to completely ban social networking sites in the workplace, there are some steps employers can take to minimize legal risks.

The primary dangers of employees using the sites include:

• legal issues, such as defamation and harassment
• the leaking of confidential information, and
• damage to the company’s reputation.

One solution many companies have found to be effective: Let employees know they’re being monitored.

It’s not enough to have employees sign off a policy when they’re hired — experts say firms should send periodic reminders to employees to refresh their memories of the policy and the company’s monitoring practices.

It won’t stop all personal Web use — and it must be combined with a serious and consistent enforcement of the policy — but it should dissuade employees from using the Web inappropriately while at work.

Managers in your company may have had problems with employees focused on fantasy football leagues during time they should’ve spent working. But have any been fired just for belonging to a fantasy league?

That’s what happened to four Fidelity Investments employees recently. Management intercepted an e-mail discussing the activity, investigated and fired employees who had organized the pools.

You see, competing in a fantasy football league for money ($20, in this case) is technically gambling, which is technically illegal in most places.

Fidelity also has its own policy against gambling in the workplace. Cameron Pettigrew, one of the employees who was fired, was aware of the policy, but claimed it was never strictly enforced, the Fort Worth Star-Telegram reports. He said he knew of several managers and execs who also played fantasy football.

In addition to the legality, the company said it also prohibits fantasy football because it’s a distraction. One recent study estimates a nationwide productivity loss of $275 to $435 million for each week of the football season.

But, many claim, it’s just one of many distractions — a list that includes social networking and holiday shopping. And we’d bet not many employees have been fired just for having a Facebook account.

Whatever your company’s policy, one thing’s clear: It needs to be enforced consistently. Letting execs do something that rank-and-file can’t sends the wrong message to employees (and, with a company of Fidelity’s stature, could send that message to the rest of the world, too).

What’s your opinion? Should Fidelity have fired the fantasy footballers? Let us know in the comments section below.

If employees send text messages on the company’s dime, the company should be able to monitor them, right? Maybe not, according to recent court decisions.

An employer gave cell phones to a group of employees so they could communicate via text messages. The contract with the wireless provider said the company would be charged an overage fee if any phone sent more than a certain number of words in a given month. Employees had to reimburse the company for those charges.

After one employee went over his limit four times, the company obtained copies of his messages from the wireless provider. The transcripts revealed the employee was sending a lot of personal messages — in fact, many of them were sexually explicit.

The employee was disciplined, but sued, claiming his privacy was violated when the vendor provided — and the company read — his personal messages.

A jury ruled in favor of the company, before an appeals court reversed the decision. The reason: The messages weren’t the company’s property because they were stored by a third-party vendor (unlike company e-mail, which is often held on the company’s own network).

Now, the Supreme Court has agreed to hear the case. We’ll keep you posted on the outcome.

Cite: Quon v. Arch Wireless

Companies are often required to preserve a lot of electronic documents before going to court. And deleting that information can often cause big legal problems.

A surgical resident sued her employer for gender discrimination. She complained to hospital officials that she was being treated unfairly because of her gender; shortly after, she was told her contract wasn’t being renewed, because of performance problems.

The main dispute centers around a negative performance review. According to the company, the review was completed before the resident’s bias complaint, as shown by the date on an electronic copy of the document.

However, the employee claimed the hospital wrote the review after the complaint as an excuse to let her go, and then backdated the file.

Court-appointed tech experts examined a copy of the file, but saw no evidence the employer had tampered with the data. The employee then asked the court to obtain the hard drive from her supervisor’s computer, and the court agreed. However, the hospital claimed the drive was reformatted and erased because ti crashed.

That sealed her case, the employee argued. Why? By destroying the electronic evidence, the hospital showed it was guilty.

After a jury ruled for the hospital, she asked the court to open a new trial and tell the jury the employer intentionally got rid of evidence. The court disagreed, though. There was no reason to believe the reformatting was intentional, especially after the hospital already turned over the file in question.

Cite: Paylan v. St. Mary’s Hospital Corp.

Who’s most likely to steal your company’s sensitive information? Foreign hackers? Professional identity thieves?

Wrong. One of the top threats to businesses these days is data theft by former employees, according to a survey by Ernst & Young. Of the 2,000 IT pros surveyed, 75% are worried about reprisals from employees who’ve left their organization. Also, 42% are already taking steps to dodge the risk.

To avoid problems, HR needs to work closely with IT when employees are let go.

Upper management often keeps downsizing details as a closely guarded secret. But it’s important to let IT know as soon as possible, so they can take on the task of removing the accounts.

Otherwise, disgruntled former employees have a window in which they can still access the company’s computer system and do serious damage.

It’s also important for help desk workers to keep an updated list of who is and isn’t an active employee. If they don’t, ex-employees could call and ask to have their access restored.

Quick — what’s the biggest threat to your company’s sensitive data? Hint: It’s not foreign hackers.

It’s the company’s employees.

Over 41% of office workers have downloaded sensitive data from their employers. That the conclusion of a survey of 600 financial sector employees from New York and London.

Some further results:

• One-third of respondents said that they would gladly steal data if it meant giving friend or family a leg up on getting a job.
• 48% said that if they were fired tomorrow, they would take company information as they went out the door.
• 31% said that they had already taken such data from one company to another.
• 54% said they would take data “just in case” it might prove useful.
• 43% said they would snoop around the network to check out HR information, including planned layoffs and comparative salaries.

The big prize of all this pilfering is customer and contact information, followed by plans and proposals, and product information. Even worse, 13% of those surveyed said they would take or have taken access codes and passwords.

That’s in spite of the fact that 85% of employees surveyed were well aware that such data pilfering is illegal. They also pointed out that they have little fear of getting caught, as their employers have no system in place for tracking the data leaks. 57% said that it was easier to take sensitive data than it has been in the past.

Now, the cutthroat financial industry is probably a lot less restrained than most, and the potential monetary value of stolen information is surely higher in other industries. But the general trend is there. And the authors of the study believe that the recession has made stealing data all the more likely.

The point is that building an effective data security system is more important than ever. For many companies, cutbacks in IT budgets have left them more vulnerable than ever. Those are cost savings that might well lead to big losses down the pike.

Do your managers get frustrated because employees can’t keep away from social networking sites? Well, it looks like some folks even have trouble staying off the Web during their own weddings.

Dana Hanna, a computer programmer from Maryland, recently got married. While at the altar, he added a new step to the ceremony — he pulled out his cell phone to post an update on Twitter. Hanna wrote:

“Standing at the altar with @TracyPage where just a second ago she became my wife! Gotta go, time to kiss my bride.”

He also managed to add an update to Facebook, and had his new wife’s phone ready so she could do the same.

Hanna says the interruption, which was a surprise to the bride, was done both for fun and practicality: “I have a lot of family scattered around the country and we all use Facebook a lot to keep in touch,” he wrote to caption a YouTube video of the ceremony.