The information superhighway has created avenues to enhance workplace efficiency. Over the past decade, cell phones, voice mail, e-mail, and the internet have risen from obscurity to become staples in the American workplace. This advent of technology, however, has also created new avenues for employer liability.
Technologies such as e-mail and internet use can be used to harass, offend, or defame others and cause disruption in the workplace. Employers must therefore develop rules to clearly define what actions are prohibited in the workplace and what rights the employer has to detect, investigate and punish violations.
For instance, this past July the New Jersey Supreme Court unanimously ruled that postings on a work-related electronic bulletin board may constitute sexual harassment. In Blakey v. Continental Airlines, a number of male pilots had posted derogatory and insulting remarks about Blakey on a pilots' on-line computer bulletin board. The bulletin board was part of an internet service, approved by Continental Airlines, that allowed pilots and crew members to perform work related activities such as learning their schedules and flight assignments. Although the electronic bulletin board did not have a physical location at the workplace, the New Jersey Supreme Court held that because this avenue of communication was closely related to the workplace and was beneficial to Continental, harassment through this forum could be considered part of the workplace. The court went on to hold that although an employer does not have a duty to monitor private communications of their employees, employers do have a duty to stop co-employee harassment in this forum if they know or have reason to know that harassment is taking place. Employers can expect similar opinions from courts across the country.
As a result, employers must be conscious of this potential liability and educate their supervisors on the need to respond to any such behavior. Such action is necessary because if a supervisor receives workplace e-mails or reads statements on a company bulletin board, the employer may be held liable if these statements are found to be sufficiently severe or pervasive to create a hostile work environment and the employer failed to effectively respond. Similarly, just as centerfold pin-ups in the office can create a hostile work environment, supervisors must be aware that employees should not be visiting pornographic websites. Such action is unrelated to the workplace, and can also create a sexual hostile environment if employees view this material or believe the employer allows such behavior.
The employer can seek to prevent such activity by enacting a policy regarding employee use of computers, e-mail, and voice mail. Such a policy should state that the use of such technologies are limited to areas that are job-related, and make clear that there will be "zero-tolerance" for any e-mail that is derogatory, defamatory, obscene, harassing, unlawful, or otherwise inappropriate. Employers should understand that between checking current stock prices or forwarding a joke, employees use these technologies for personal use. Employers must therefore judiciously enforce such a rule to ensure they are not accused of applying it in an illegally discriminatory manner, and enunciate the business related purpose for action taken.
Another issue is an employee's right to privacy regarding his or her use of this equipment and the employer's right to monitor and access information from an employee's equipment. To have a protected right to privacy, the employee must have a reasonable expectation of policy. In 1996, a federal court in the eastern district of Pennsylvania evaluated an employee's claim that his right to privacy had been violated and he had been wrongfully discharged when his employer fired him for inappropriate and unprofessional comments made in e-mails sent in confidence to another employee that had been intercepted by the employer. Applying Pennsylvania law, the court found in Smyth v. Pillsbury Co. that the employee did not have a reasonable expectation of privacy in communications sent over a company operated e-mail system because the company's interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighed any privacy interest the employee had in those comments.
Despite the fact that this court found no privacy interest, employers would be well served to adopt a policy in their employee handbook addressing this issue to ensure the employee cannot claim a right to privacy, and prevent themselves from violating the federal wiretap or electronic communication privacy statutes. These statutes prohibit unlawful access, use or disclosure of wire or electronic communications, such as e-mail. Determining when an employer is "without authorization" to access private e-mail stored on its own system is an evolving issue. Employers can preempt claims by adopting a policy which clearly addresses this issue. Such a policy should state that the company retains ownership of its equipment, such as its computers, voice mail system and e-mail system, and that it retains the right inspect or review any material or communications contained on this items without notice. The policy should further specifically state that no material on these items should be considered private, and that as a condition of employment, the employee gives consent to the company's policy.
By drafting this policy, and having employees recognize their receipt and acceptance of these terms by signing an acknowledgement form for the employee handbook, employers will protect themselves from possible claims by clearly communicating their rights with regard to such equipment and their expectations regarding employee use. Consistent with this view, courts have held that an employee has no reasonable expectation of privacy in connection with Internet use where the employer's policy provides for auditing of activity on the network to track unauthorized activity.
Both employers and employees are better off if the employer actively educates employees about the company's policy regarding computers, e-mail, and voice mail and obtains the employees consent to it. Each employer should provide a clear, well-defined written policy for the proper use of its equipment that states the employer's right to monitor and access all information on the equipment. By doing so the employer can avoid possible causes of action, and adequately investigate and address workplace issues.