Employers who don’t do enough to regulate their workers’ on-the-job Internet use aren’t just inviting bad behavior — like pornography viewing or social media harassment — but may also be opening the door to civil lawsuits and even criminal charges, if they let a rogue employee go completely off the rails.
Misuse of employer computer and Internet resources can sap workplace productivity, imperil the confidentiality of trade secrets, drag employers into costly legal battles over co-worker harassment.
Co-worker harassment is no less of a potential liability when it happens online than it is in face-to-face encounters, and an employer’s resources can be used for crimes like online gambling, setting up drug deals, and viewing or downloading child pornography, if the employer has a particularly rogue crew.
At least one appeals court has held that employers can face civil liability for sitting on their hands if they are on notice that an employee is viewing child pornography, and defamation cases have come out of workers misusing their computers to try to settle scores.
Employers do have recourse if they discover an employee is abusing their technology. A California court would be likely to follow what a court in Wisconsin did, affirmed the firing of an airport director for viewing pornography at work and setting up sexual encounters using private email on his work computer.
Five basic steps can be taken by companies to encourage proper employee conduct and cut down on the chances of ending up in legal hot water for computer misuse:
When it comes to the private sector, an employer’s rights to keep tabs on its workers are fairly expansive, but companies should still make it clear to employees that their electronic communications and Internet use on company-owned systems are subject to being monitored.
The preferred way is to have some type of written policy — whether its in a handbook, a stand-alone policy or some other written document — that the employer can prove that the employee has in fact received, and even acknowledged receiving.
Communications covered by a policy should include everything within the employer’s email system and instant messaging system, and anything transmitted over or through the employer’s networks or servers.
The policy should let employees know that their employer’s computers and Internet should be used for work purposes only, and that accessing websites or disseminating or storing communications of a discriminatory, obscene, threatening or harassing nature could result in disciplinary action or even termination.
Employers should be vigilant to ensure that proscriptions against bullying and harassment still apply even when novel platforms like Twitter are involved and make sure that technological leaps forward don’t leave workplace policies in the dust.
The law in this area is constantly developing and changing. Employers need to look to revise those policies, at a minimum, on an annual basis.
No matter how good a written policy is, its impact on the workforce will be muted if the employer doesn’t use training to bring that policy to life. Communicate the policy effectively and train on it. Don’t just announce it and put it in a drawer.
One way to cut down on inappropriate computer use at work is to preclude access to certain sites, such as pornographic sites.
Companies can even go further and block access to social media sites like Facebook if they feel like they’re a drain on employee working time, though broader bans may be less practical.
Sitting idly by in the face of workplace misconduct opens an employer up to legal liability, and that’s just as true when it comes to online and social media conduct as it is when dealing with face-to-face harassment by the proverbial water cooler.
Disciplinary action lets workers know that the policies are actually taken seriously by management, and being consistent helps stave off claims that discipline was applied to one worker but not to others because of bias.
Being proactive can save a raft of problems later. Being an ostrich and ignoring the issue is not a wise option for an employer.
If you or your small business have any questions or concerns, or we can be of further assistance, please contact our law firm, LA SuperLawyers, Inc. to fill the form here, or call us at (310) 477-7767 to schedule a consultation.