Create Policies to Temper Employees' Rights to E-Privacy
Flynn, Gillian, Workforce
Unlike telephone usage, companies feel strongly that they have a right to control what employees do in the workplace with e-mail and the Internet.
John Zaimes Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP
Privacy is one of the more slippery workplace issues. Where does it end and where begin-particularly in the Age of Electronica?
It's simply a given that employees will occasionally use the Internet or e-mail for personal reasons. But what if those personal reasons end up causing a hostile work environment, or worse, end up illegal? Employers have a certain amount of liability for what their employees do on their property, and that includes how they use computers.
John Zaimes, head of employment law for Los Angeles law firm Weston, Benshoof, Rochefort, Rubalcava & MacCuish LLP, offers advice about how to set some guidelines to protect your company-without crossing workers' privacy rights.
What is the state of e-privacy issues in the workplace?
In the past, privacy issues mostly focused on phone conversations and wire tapping. That was the battleground for a number of years, but the advance of the technological age has really shifted the ground. Now you have more heightened concerns about privacy because there's more conflict. Like e-mail and the Internet: You have a conflict between the employer's interest in controlling its use and the employees' rights to control their communication. In most offices the computers are owned by the firm, so the firm feels that it has a right to control the use of its property-and it installs policies that say so.
And where does the problem come in?
Employees feel as though e-mail or Internet use is their form of communication-if they want to spend their lunch hour on the Internet, the company ought not to be able to tell them they can't do that. And if they want to send a private email to someone, the company ought not to be able to access that. That's where the trouble comes in, because unlike the telephone usage, companies feel much more strongly-and today courts will back them up on this-that they have a right to control what employees do in the workplace with e-mail and the Internet. Why is that?
Employers want to be able to control the efficiency of the workplace-they don't want people goofing off, sending personal e-mail all day or going on the Internet on company time. Also, employers are exposed to a significant liability with Internet access that they wouldn't be quite so exposed to in telephone usage. You get into areas of pornography, hate mail, hate groups. Porn obviously is one of the characteristic situations companies run across. [For example,] if an employee is using his or her computer to go on the Internet, access a porn site, and download it. Then he or she either transmits it to others in the office, or other people in the office are seeing this person do that.
What's the concern there?
It raises all sorts of concerns about sexual harassment, racism and other issues. Companies face problems with people sending an off-color joke, and if the company knows or should know about it, it's going to be held liable for letting that kind of conduct go on. The second area that comes up--and it's not as common as the porn Web sites, jokes or sexual-harassment issues-is with hate groups.
There's a case I know, for example, where there was an employee who was actively involved in visiting different hate-group sites. He'd send e-mails that were very antagonistic to people-he figured he could say anything and nobody would ever be able to find out. Well guess what? Somebody figured a way to track down his e-mail address and found where he was. He suddenly got a call from one of these people he'd sent the hate-filled messages to who said, "I found you, I know where you are, and I'm coming after you."
Now think about what that does to the workplace. This man is working at a place just baiting some guy with hate messages and the only place the guy knows to find him is at work. …