When it comes to compliance and content, employee education is key. One of the easiest ways to control electronic risk is to manage employee behavior. Unmanaged IM and e-mail users are human time bombs waiting to detonate.
If an employee sends a series of off-color instant messages that trigger a sexual harassment claim, will the offending employee or the hapless employer be sued? Like it or not, the organization (not the individual IM user) is most likely to be slapped with what could be a costly and protracted lawsuit, potentially played out on the pages of the local or national business press.
Based on a legal principle known as ‘‘vicarious liability,’’ an employer may be held responsible for the misconduct (accidental or intentional) of its employees—even if the employer is completely unaware there’s a problem.  That news should serve as a wake-up call to the 25 percent of organizations that have yet to establish a written e-mail policy—the first step toward controlling employees’ online behavior. The 51 percent of employers who fail to educate employees about e-mail risks and e-mail policy compliance should be equally alarmed.
It’s a safe bet that employers who have yet to establish written e-mail policies or institute employee training programs aimed at ensuring e-mail policy compliance—and reducing the likelihood of vicarious liability—are unlikely to have addressed instant messaging policy and education yet.
Can the boss be held responsible for sexual harassment—even if the employer is totally unaware of the problem? You bet. According to a 2003 California Supreme Court ruling ( Department of Health Services v. Teresa V. McGinnis), an employer is strictly liable for all acts of sexual harassment by a supervisor. Under California law, an employee can sue an employer for a supervisor’s harassment—even if the employee has never complained and the employer has no reason to suspect the harassment. 
Nancy Flynn and Randolph Kahn, Esq., E-Mail Rules, New York, AMACOM, 2003.
‘‘2003 E-Mail Rules, Policies, and Practices Survey,’’ conducted by American Management Association, The ePolicy Institute, and Clearswift. Survey findings available online at www.epolicyinstitute.com.
Susan Blitch, ‘‘Court: Firm Liable for Supervisor’s Conduct,’’ The Californian.com (February 17, 2004), www.californian online.com/news/stories/20040217/localnews/428603.html.