Government Issues and Politics
Insurance and Employee Benefits
Business and Economic Info
Human Resources and Safety
Education Policies and Practicies
Training and Consulting Services
Welcome to CBIA's Training and Consulting site!
Small Business Human Resources Workforce Development Your Questions Answered Success Stories

July/August 2005 — Vol. 83, No. 6

COVER STORY

Managing in today’s electronic workplace

Electronic devices have revolutionized the workplace, but they have also raised new legal and employee-relations issues for employers.

By Noreen S. Kirk

Freelance writer in Andover

If one of your employees e-mails a risqué joke to his wife, who e-mails it to a friend, who e-mails it to several other people at their jobs, one of whom is offended by it, can your company be sued for sexual harassment? Believe it or not, the answer is yes, according to CBIA Counsel Mark Soycher, who directs the association’s Human Resources Services department.

“E-mail equals evidence,” Soycher says. “It includes names, dates, times, companies — it’s tailor-made for being admissible evidence in court. And in this case, it portrays the company as being tolerant of inappropriate behavior at work.”

Surprised? Welcome to today’s electronic workplace, where the proliferation of technologies from e-mail to camera phones to Web logs and even global positioning systems (GPS) has created new risks and challenges employers may never have anticipated. Inappropriate e-mails and material downloaded from the Internet can open companies to claims of allowing a hostile work environment and threaten the stability of company computer systems. Employees’ unsafe use of cell phones while driving exposes companies to lawsuits resulting from accidents. Camera phones raise concerns about the security of proprietary information and the possible invasion of co-workers’ privacy. And employees spending excessive time surfing the Net, instant-messaging, and talking to family or friends on cell phones can cut into productivity.

These and related challenges aren’t insurmountable, but they do need to be dealt with through raised awareness, sound written policies and good employee communications.

Your right to know

The computers and systems employees use at work to send e-mails or access the Internet are their employers’ property. Because of this, the law allows employers to monitor them to make sure the resources are being used appropriately. Under Connecticut law (Sec. 31-48d), employers who intend to electronically monitor employees must communicate their intention by prior written notice to employees. Proper notification includes posting a notice in a conspicuous place.

Patrick McHale, a partner in the Hartford law firm Kainen, Escalera & McHale PC, encourages employers to post the required notices as a matter of course even if they’re not yet planning to conduct monitoring.

“Because liability can be created, you want to have the capability of monitoring,” says McHale. “You want the most flexibility that the law allows so you have the right to monitor when you think it’s appropriate.”

Courts have ruled in favor of employers in electronic monitoring cases when the employers had taken proper steps in advance, says Michael Soltis, managing partner in the Stamford office of Jackson Lewis LLP.

In cases involving e-mail, Soltis says, “If the employer has an appropriate electronic communications policy that negates any expectation of privacy on the employee’s part, in Connecticut they’ll be in good shape defending their looking at [employees’] e-mail.”

CBIA’s Soycher points out another reason all employers should post notices: In some situations, employers may be electronically monitoring employees without intending to. For example, companies may be using card keys or palm-print systems to control access to the workplace or record hours worked.

“Those are forms of electronic record keeping and should be considered part of the electronic monitoring process,” Soycher says. “Posting the notice covers an employer who may inadvertently be engaging in electronic surveillance.”

The Connecticut Department of Labor has received only 24 complaints in the last four years about employers failing to meet the posting requirement, according to Gary Pechie, director of the department’s Wage and Workplace Standards Division. These mostly involved situations in which surveillance cameras were used to gather information that was later used to take an action against an employee. The DOL can levy civil penalties against employers who violate the posting requirement.

E-mail and the Internet

Just a few years ago, e-mail was a relative rarity. Today, businesses simply couldn’t function effectively without it. As it has become so ubiquitous, many employers have modified their policies on its use.

“Some employers have said, ‘Our computers, e-mail and Internet are to be used solely for businesses purposes, and we prohibit using them for personal communication.’ I think that’s too restrictive,” says CBIA’s Soycher. “The wiser approach is for employers to specify that electronic communications systems are designed for business use, and that any personal use should be kept to a minimum and must not interfere with productivity.”

He stresses, however, that employers must make clear to employees that, while they may occasionally use e-mail for personal purposes, they cannot assume it is private and should not write anything they wouldn’t be comfortable having anyone else at work see.

E-mail has emerged as a significant risk for employers in terms of claims of harassment. “Whether it’s inappropriate jokes, graphics or double entendres, a significant percentage of sexual harassment cases have e-mail involved,” says Soltis. “And it’s not just sexual; it could be racial or any other kind of harassment.”

Employees’ Web surfing for personal reasons can raise this issue, too. One employee may object to seeing — even accidentally — images another employee may have on his or her computer screen. If the employer doesn’t take action against the offending employee, the company may be seen as allowing a hostile work environment and could be found liable.

Then there are the risks to the company’s computer systems. Employees downloading material from the Internet could introduce viruses. People who visit pornographic Web sites leave “tracks” that enable Web providers to continually send enticing messages.

“One of my clients had its system shut down by the large number of pop-up ads that were coming in,” says McHale. “They traced it and found a number of people were viewing pornography.”

To demonstrate that the company is eager to protect employees from unwanted or offensive spam or other communications, employers should encourage employees to report such problems so the company can work with its information technology department to block the objectionable material. By creating and communicating such a policy, the employer helps protect itself from future legal claims.

Employers must also take care how they delete e-mails from their systems, especially in light of the Sarbanes-Oxley law. “There are some provisions that forbid destruction of documents, particularly when they relate to federal issues such as bankruptcy filing, audit reports and financial matters,” says CBIA’s Soycher.

Cell and camera phones

In general, employers’ policies on cell phone use in the workplace should parallel those governing the use of e-mail and the Internet: Use should be kept to a minimum and should not hurt productivity or distract other employees. However, in a production environment where cell phone use may be a safety hazard, the employer may want to prohibit their use except during breaks.

But employers need to have strong policies on employees’ use of cell phones while driving. If an employee has an auto accident while using a cell phone, an injured person could claim that the employer’s negligence contributed to the accident. In 2001, for example, a Miami jury found an Arkansas company liable for more than $20 million after an employee who was talking on his cell phone struck another car, seriously injuring a passenger. The company settled the case for $16.1 million.

“If a company has a strict policy against using a cell phone while driving and can show it has trained its employees, reminded them and disciplined violators, it doesn’t absolve the employer of liability, but it may diminish the perception that the employer was irresponsible,” says Soycher. He also points out that as of Oct. 1, a new state law will ban the use of hand-held cell phones while driving, except in an emergency.

By 2006, 80% of cell phones are expected to be equipped with cameras. Some employers are concerned that these will enable employees to photograph co-workers without their knowledge, thus invading their privacy, or to photograph important business assets, such as documents and equipment.

McHale believes banning the devices isn’t necessary. Company policy, he says, must state that individuals in the workplace have privacy rights and that the company expects all employees to honor them. As far as security goes, employees bent on doing mischief have long been able to simply photocopy documents.

“I don’t think the camera phone introduces any new risks,” McHale says.
Soycher agrees. “Employers don’t have to come up with anything new in order to address this issue. They should take the same approach they take with other privacy and confidentiality issues.”

Web logs and GPS

Two emerging issues include Web logs — or blogs — and GPS. Some companies, including Delta Airlines and Google, have terminated employees on the basis of material posted on the employees’ personal blogs. While some might question whether employers have the right to discipline employees for something they did on their own time and their own computers, the companies seem to be on firm legal ground.

“There is a legal position to take that employees have a duty of loyalty to the employer,” says Soycher. As long as the employees’ comments are not otherwise protected by law, employers are within their rights to take action against employees who publicly say negative things about the company.

Soycher adds that employers who establish and promote nonpunitive internal complaint processes will be on even firmer legal ground if employees discuss their complaints on a blog instead of using the process.

The capability of GPS to monitor the whereabouts of company vehicles in real time is raising a number of employee-relations issues. While companies say GPS is a productivity tool that helps them with scheduling and customer service, some employees claim it represents a “Big Brother” mentality.

“If a company is going to use GPS, it must communicate to employees the legal business reason for doing it,” says Soltis, “and be sensitive to the fact that some employees are going to find it offensive.”

Building a culture of trust

When it comes to managing the electronic workplace, “there has to be a balance between protecting the organization’s interests and respecting the interests of employees,” says business ethics consultant Michael Rion, Ph.D., principal in West Hartford–based Resources for Ethics and Management.

Rion acknowledges that employers are wise to monitor the workplace to ensure proper use of electronic resources. However, they should take care that they are not “building a Big Brother mind-set, where they’re being unnecessarily invasive, monitoring everything and always expecting the worse.”

He also points out that e-mail, cell phones, pagers and BlackBerry-type devices have “virtually erased the boundaries between work and the rest of life. And the employer reaps some benefit from that.”

In light of this new reality, he says, employers have to be reasonable in allowing workers to make some personal use of electronic communications resources. “Otherwise, the company is saying, ‘We can invade your life whenever we want to, but we’re not going to cut you any break the other way.’”

Rion adds, “It fundamentally comes down to building a culture of mutual respect and trust between employer and employee.” In managing the electronic workplace, he says, “technology just happens to be the vehicle that raises the issue.”

 

[back to top]

 

Related Articles: