Recent U.S. lawsuits involving workplace technology include a police department that was sued by an employee whose supervisor repeatedly sexually harassed her via e-mail. The court ruled that her claim had merit because her employer did not adequately manage the supervisor’s misuse of e-mail.
A former employee who hijacked his prior employer’s e-mail system to send fraudulent information to customers had to pay extensive damages for misappropriating trade secrets. And an employer whose employee used its Internet systems to promulgate child pornography was held responsible for not terminating him or reporting his activities to police.
Employers are being held responsible for what their employees are doing with company technology, and they are responding. A 2005 survey conducted by the American Management Association and the ePolicy Institute demonstrated that of the participants: 26 percent had fired workers for misuse of the Internet, and 25 percent had terminated employees for e-mail misuse. Despite that, 13 percent of those same employers have been involved in litigation triggered by an employee’s use of e-mail.
Welcome to the Wild West of workplace technology issues – a new and growing concern caused by the increasing blur between personal and professional lives. Employers are looking for ways to maximize their benefits from interconnectivity while corralling renegade users of technology. This is possible.
New sources of liability
Company blogs are all the rage, but increasing numbers of employees also maintain personal blogs. Employees could be blogging (posting comments on their own or others’ blogs) while they’re at work, or they could be blogging about work, about co-workers, or about management while off duty.
Organizations need to be aware that employees who blog at work or about work can create liability for an employer. Indeed, there have been several high publicity lawsuits caused by an employee’s blogging about work, or as a result of postings on personal or business blogs.
Employers who “dooce” (fire) an employee for blogging, or engaging in other inappropriate electronic communications, also face potential liability for violating the employee’s rights.
Organizations also use new tools to spread their message – including social or business networking sites such as Facebook, MySpace and LinkedIn. These sites, however, often blur the distinction between the personal and professional. Employees use personal networking sites for many reasons. Depending on the employee’s security preferences, the information they put on their profiles may be out in the public eye where anyone can access it.
Smartphones combine access to several forms of technology. Employees might be using their BlackBerrys or iPhones for work purposes or they might be surfing the Internet, e-mailing a friend, blogging about their personal lives or their workplace or text messaging.
Minimize liability
Fortunately, there are some simple ways that employers can minimize liability while still capitalizing on the benefits of new technology. Developing an electronic use policy, monitoring communications, communicating with and training employees, and instituting an ongoing training program are the best ways to keep yourself and your employees out of court.
An electronic use policy places employees on notice that they have no expectation of privacy in their use of workplace technology. It also serves to notify employees about proper and improper use of technology.
Many organizations have, unfortunately, pulled their electronic use policies from somewhere on the Internet so they rarely address the employer’s specific technological needs or uses. While adopting a policy is a good place to start, simply adopting a standard policy is not enough. Employers need to make sure their policy actually says what it needs to say.
While it is difficult to adopt a policy that unilaterally applies to all uses of technology, a good policy should address a few main points:
No expectation of privacy. Advise employees that the company not only has the right to, but will inspect, monitor, and review employee use of employer provided or paid for technology.
What behavior is permitted and what is not? Provide examples of objectionable misuse as well as acceptable use, including any acceptable personal use.
No violation of the law will be permitted. Instruct employees that use of technology in any way that violates the law or is prohibited by other company policies violates the policy.
There are consequences. Inform employees that a violation will be cause for discipline up to and including termination of employment.
How to monitor
Adopting an electronic use policy is only the first step in managing employee use of technology. The policy, to be effective, must be implemented and enforced.
The 2005 American Management Association/ePolicy Institute survey demonstrates that employers’ monitoring efforts seem to be focused primarily on inappropriate Web surfing, but 36 percent of employers also track content, keystrokes and time spent at the keyboard; 50 percent store and review employees’ computer files; and 55 percent retain and review e-mail messages.
If a complaint comes in, an employer should take action to stop the offensive behavior. If a complaint escalates into a lawsuit, the defense will be significantly debilitated if during the course of the litigation, the plaintiff discovers that the employer knew or should have known about the behavior all along and did nothing.
The discovery of this information impacts a critical defense to a hostile work environment claim – that the employer took prompt and effective remedial action to stop the behavior upon discovery.
In short, employers should educate employees and supervisors about the ramifications of improper correspondence. They need to be told that anything they write in an e-mail or save electronically, or access on the Internet can and will come back to haunt them. Most employees never think about the potential ramifications until it is too late. Training on proper use of technology is as important for employers as sexual harassment training to prevent potential liability and defend against subsequent claims.
Taming the Wild West of workplace technology requires forethought and discipline. Keeping potential outlaws under control will keep your organization and employees out of court while maximizing productivity.
Teresa Thompson,
Fredrikson & Byron:
612.492.7347
tthompson@fredlaw.com
www.fredlaw.com
