Privacy in the Workplace

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=90 BGCOLOR="#006699" TEXT="#080000" bgproperties="fixed" background="064285a1erlcgo.png"> <div> <FONT SIZE="5" COLOR="#FFCC66" FACE="Arial" ><B>The Telework Coalition</B></FONT><B>    </B><B> </B></div> <div> <B>Enabling Virtual, Mobile, and Distributed Work through Education, Technology, and Legislation</B></div> </td> </tr><tr> <td valign="top" width=210 BGCOLOR="#FFCC66" TEXT="#080000" background="063d2c00dkelyh.png"> <div> <A HREF="index.htm" TARGET="_top" TITLE="The Telework Coalition"><U>Home</U></A></div> <div> <A HREF="id296.htm" TARGET="_top" TITLE="Membership Sponsorship Opportunities"><U>Membership & Sponsorship Opportunities</U></A></div> <div> <A HREF="id208.htm" TARGET="_top" TITLE="Our Sponsors"><U>Our Sponsors</U></A></div> <div> <A HREF="id270.htm" TARGET="_top" TITLE="TelCoa in the News"><U>"TelCoa in the News"</U></A></div> <div> <A HREF="id17.htm" TARGET="_top" TITLE="Calendar"><U>Calendar</U></A></div> <div> <A HREF="id282.htm" TARGET="_top" TITLE="TelCoa / ACP Event"><U>TelCoa / ACP Event</U></A></div> <div> <A HREF="id19.htm" TARGET="_top" TITLE="Contact Us"><U>Contact Us</U></A></div> <div> <A HREF="id259.htm" TARGET="_top" TITLE="Strategic Alliances"><U>Strategic Alliances</U></A></div> <div> <A HREF="id278.htm" TARGET="_top" TITLE="Business Continuity Planning (COOP)"><U>Business Continuity Planning (COOP)</U></A></div> <div> <A HREF="id294.htm" TARGET="_top" TITLE="Avian Flu and Pandemic Information and A"><U>Avian Flu and Pandemic Information and Articles</U></A></div> <div> <A HREF="id156.htm" TARGET="_top" TITLE="Virtual Call Center Sponsors"><U>Virtual Call Center Sponsors</U></A></div> <div> <A HREF="id157.htm" TARGET="_top" TITLE="Virtual Call Centers "><U>Virtual Call Centers </U></A></div> <div> <A HREF="id20.htm" TARGET="_top" TITLE="Board of Directors and Advisory Board"><U>Board of Directors and Advisory Board</U></A></div> <div> <A HREF="id158.htm" TARGET="_top" TITLE="The Telecommuter Tax Fairness Act "><U>The Telecommuter Tax Fairness Act </U></A></div> <div> <A HREF="id223.htm" TARGET="_top" TITLE="TelCoa Awards"><U>TelCoa Awards</U></A></div> <div> <A HREF="id18.htm" TARGET="_top" TITLE="Our Vision and Mission"><U>Our Vision and Mission</U></A></div> <div> <A HREF="id40.htm" TARGET="_top" TITLE="Telework in the News"><U>Telework in the News</U></A></div> <div> <A HREF="id35.htm" TARGET="_top" TITLE="Federal, State, Regional News, Legislat"><U>Federal, State, & Regional News, Legislation, and Programs</U></A></div> <div> <A HREF="id263.htm" TARGET="_top" TITLE="Telework Tools "><U>Telework Tools </U></A></div> <div> <A HREF="id33.htm" TARGET="_top" TITLE="Telework Facts "><U>Telework Facts </U></A></div> <div> <A HREF="id42.htm" TARGET="_top" TITLE="You Should Know"><U>You Should Know</U></A></div> <div> <A HREF="id43.htm" TARGET="_top" TITLE="Broadband"><U>Broadband</U></A></div> <div> <A HREF="id27.htm" TARGET="_top" TITLE="Environmental Information and Fact Sheet"><U>Environmental Information and Fact Sheet</U></A></div> <div> <A HREF="id90.htm" TARGET="_top" TITLE="Health, Safety Telework"><U>Health, Safety & Telework</U></A></div> <div> <A HREF="id105.htm" TARGET="_top" TITLE="Telework Jobs and Opportunities"><U>Telework Jobs and Opportunities</U></A></div> <div> <A HREF="id337.htm" TARGET="_top" TITLE="Other Jobs"><U>Other Jobs</U></A></div> <div> <A HREF="id34.htm" TARGET="_top" TITLE="Contributing Partners"><U>Contributing Partners</U></A></div> <div> <A HREF="id41.htm" TARGET="_top" TITLE="Related Links "><U>Related Links </U></A></div> <div> <A HREF="id25.htm" TARGET="_top" TITLE="Reference"><U>Reference</U></A></div> <bR> <div>  </div> <bR> </td> <td valign="top" height=390 BGCOLOR="#FFFFFF" TEXT="#080000"> <div> <I>Privacy in the Workplace</I></div> <div> <I>                                                    </I></div> <DIV ALIGN="LEFT"></DIV> <div> Privacy in the Workplace<FONT SIZE="1" COLOR="#000000" FACE="Arial" >1</FONT></div> <bR> <div>      What is “privacy in the workplace” and why is it so important to every employer?  Many employers are now monitoring employees' use of Internet, e-mail and other technologies provided by the employer for carrying out its activities.  It is through the use of these technologies that American workers, especially, have become among the most productive in the world.  </div> <bR> <div> Why are employers monitoring their employees' uses of these technologies?  There are four reasons - liability, discoverability, productivity and protection of trade secrets and intellectual property - each of which is discussed, in greater detail below.  With greater monitoring have come the inevitable lawsuits by employees for invasion of privacy, which has resulted in a 3000% increase in privacy related claims.  What is going on and how is an employer supposed to address this issue?</div> <bR> <bR> <div> <B><U>Hostile Work Environment</U></B></div> <bR> <bR> <div>      Employers are often faced with Title VII claims by employees under the theory that the employer allowed the discriminatory misconduct of another employee to continue after the employer knew about it.  These are most commonly known as “hostile work environment” cases in which an employee claims that the employer knew or should have known that another employee was harassing or discriminating against one or more employees and failed to prevent it.</div> <div>   </div> <div>      Employers provide employees with access to its computers, e-mail and Internet services in order to facilitate <I>business</I> communications; the intended use of these technologies. Therefore, when employees use the employer's technology for another purpose, courts have dealt with these issues as one might expect.  For example, derogatory and potentially defamatory material posted to a chat room provided by an employer for employees to check their work schedules was found to create a hostile work environment. <FONT SIZE="3" COLOR="#0000FF" FACE="Arial" ><A HREF="mailto:A.@d" TARGET="_top" TITLE="mailto:A.@d"><U><U>mailto:A.@d</U></U></A></FONT>In hostile work place cases, courts routinely allow plaintiffs to introduce copies of the provocative e-mails that were sent.</div> <bR> <div>      In <I>Coniglio v. City of Berwyn</I>, a female employee in the city's computer department and several co-workers repeatedly observed her supervisor viewing pornographic pictures on his office computer.  The pornographic images could be seen through a window in the office by anyone passing along the hallway. Coniglio was fired after a mainframe went down while she was out of the office due to an illness. She sued the city alleging a variety of claims, including sexual harassment due to her supervisor's display of the pornographic images.  The court concluded that the display of pornographic images, and the city's alleged failure to adequately respond when informed, could constitute a violation of Title VII.</div> <bR> <bR> <div> <B><U>Negligent Retention</U></B></div> <bR> <bR> <div> Likewise, a third party injured by an employee through the use of technology owned by the company can subject the company to liability for “negligently retaining” the employee that caused the injury.  Therefore, knowing what employees are doing while at work is the key to avoiding claims from other employees, as well as from third parties.  For example, a male Prodigy employee, using the company computer for purposes of cyber seducing while at work, entered a Prodigy sex chat room and made contact with a woman and persuaded her to meet and ultimately to have sex with him.  What she didn't know was that he was a known sexual predator and that he had AIDS, despite his denial both prior to and following sexual contact. </div> <div>  </div> <div>      The woman sued Prodigy and the court found that she failed to show that the employer knew anything about the wrongful conduct of its employee.  The court was less clear in analyzing whether the employer <I>could</I> have known or <I>should</I> have known what its employee was doing.  What will future cases bring?  As negligent hiring carries the risk of punitive damages, the potential exposure from such claims is significant. The court's analysis leaves unresolved questions about the likelihood of future cases. </div> <div>   </div> <bR> <div> <B><U>Whether and How Much to Monitor</U></B></div> <bR> <bR> <bR> <div>      The negligent retention and hostile work environment issues require an employer to responsibly manage and supervise its employees and their activities while at work in order to avoid any harm from coming to the public at large.  If the employer knows, or reasonably should have known, that an employee was engaging in activity while at work that could bring harm to another employee or to a third party, the employer can be liable for any actual harm.  Therefore the question is, what should the employer know about what its employees are doing while at work? </div> <div>  </div> <div>      Technology has made the monitoring of employee activity possible. However, the dilemma is deciding whether to use the technology and how much monitoring is sufficient to protect the employer's interests.  The more you monitor, the greater the likelihood of an employee claim for invasion of privacy.  On the other hand, failing to monitor can expose an employer to crushing liability.  In addition, failing to take action, if a problem is uncovered, also creates liability for the employer. </div> <bR> <bR> <div> <B><U>“Discovery” (making evidence available to the complaining party) of Email</U></B></div> <bR> <bR> <div>      In almost every lawsuit against an employer, among the first things sought by the plaintiff are all documents that have anything to do with the facts alleged in the suit.  “Documents” include those stored electronically, such as e-mail.  As Bill Gates, Ollie North and Al Gore learned, e-mails can almost always be retrieved even if they have been “deleted” from the system. Employees commonly send e-mails containing information that they would never put into a hard copy memo or letter. If employees know their e-mail is being monitored, they may be less likely to say things that they would not want to see presented against them in court.</div> <div>   </div> <div> Avoiding the obvious areas: sexually explicit and racially or ethnically insensitive communications should go without saying, but employees need to be very careful about saying anything that implies illegal or anticompetitive behavior.  Sales managers often seek to hype their staff with admonitions to “kill the competition.”  Imagine quotations of this type being introduced in an anti-trust case.  Additionally, industrial espionage is on the rise.  Hackers who can get into corporate systems to look at e-mail.  Employees need to be mindful of what they say and remember that e-mails can last forever.</div> <bR> <div> <B><U>Productivity Loss</U></B></div> <div>      The average U.S. employee spends approximately six hours a week searching the Internet for personal reasons while at work.  At sixty-two percent of U.S. employers, employees surf for sexually explicit materials.  The two most frequent search keywords on the Internet are “sex” and “pornography/porno.”  Seventy percent of all Internet porn traffic occurs during working hours.<I> </I>During working hours, nine percent of employees earning less than $35,000 surf the net for a new job while eleven percent of those making between $75,000 and $100,000 search. It has recently been estimated that the cost to employers from this lack of productivity is $5.3 billion.</div> <bR> <div>      An effective monitoring system will identify those that are spending too much time surfing for personal reasons.  Just having a policy that employees know will be enforced will dampen the non-work surfing.   Software can limit access to shopping sites, weather sites, news sites, sports sites, porn sites and job sites, which will prevent the company for paying an employee to look for a job while at work!</div> <bR> <div> <B><U>Protecting Intellectual Property</U></B></div> <div>      The ubiquitous “chat room” allows disgruntled employees an unparalleled platform to air their complaints and post defamatory messages on innumerable websites.  Chat rooms are everywhere and millions of people spend hours in them.  </div> <bR> <div> It is not easy to identify the John Does (unnamed individuals) posting defamatory messages or company secrets. Some of the ISPs comply with subpoenas without notifying the individuals while others give notice in accordance with their policies to allow the John Does to quash the subpoenas if they can</div> <bR> <div> With Internet activity providing perceived anonymity to employees, it is likely that such suits will increase dramatically in the future.  ISPs are essentially immune from defamation claims under the Communications Decency Act of 1996. </div> <bR> <div> Monitoring employee activity while at work can help deter and detect such employee behavior. However, if an employee chooses to use his own computer while <B>not</B> at work, employers should similarly have inside or outside counsel ready, at a moment's notice, to file John Doe actions and temporary restraining orders to prevent disclosure of secrets and confidential information, and defamation. Employees should be educated on the perils of such posting.</div> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <bR> <DIV ALIGN="LEFT"></DIV> <div> <B><U>What's an Employer to Do?</U></B></div> <div> <B>     </B><FONT SIZE="2" COLOR="#000000" FACE="Arial" ><B>It is critical to have your HR and IT work carefully and closely with your legal department to formulate a monitoring policy and implementation program. The scope and level of employee monitoring will depend on the type of business involved.  Health and finance related employers may need a higher level of review whereas a parts distributor a lesser one.</B></FONT></div> <bR> <div> <B>     Your plan, once carefully crafted with input from IT, HR, management and legal counsel, should include at least the following (as in all important policy changes be sure that they are communicated clearly and in writing and acknowledged as having been read and understood):</B></div> <bR> <div> <B>     Disclosure to employees upon hiring and periodically thereafter that all e-mail, voice mail, Internet access and computer files are employer property and as such are subject to monitoring;</B></div> <bR> <div> <B>     Notification to employees that the technology they are provided by the company is company property and is to be used only for business purposes;</B></div> <bR> <div> <B>     An explanation to employees that despite the fact that they are given passwords to access your system, they should not have any expectation that the system or anything placed on the system is “private”;</B></div> <bR> <div> <B>     Notification to employees what material, in hard copy or in electronic format, they will not be allowed to transport in or out of the employer's premises or system.  Confidential material, trade secrets and protected intellectual property should not be disseminated out of the company without safeguards approved by the employer and as allowed by the software used to monitor employee use of technology;</B></div> <bR> <div> <B>Employees should not import copyrighted material or byte-heavy programs.  Bandwidth is always at a premium no matter how much you have.  Preventing employees from downloading files from the net will conserve your system's capacity and might prevent copyright claims being asserted against you company;</B></div> <bR> <div> <B>     Having an agreed upon electronic “document” destruction policy.  Federal and state laws require various types of information to be kept for various periods of time.  Make sure that all electronic files are stored and backed up in such a way as to prevent “permanent” deletion;</B></div> <bR> <div> <B>     Reiteration that your non-harassment and non-discriminatory practice policies apply to company e-mail to prohibit offensive and potentially discriminatory behavior.  It is difficult to describe in detail everything that should not be put in e-mail.  Use the mother test or the jury trial test.  Have employees asked themselves how they would feel if they had to show their e-mail to their mothers or explain them to a jury in federal court.  Such tests often have the salutary effect hoped for;</B></div> <bR> <div> <B>     Notification to employees what the penalties for violation of the policy are or could be. This should include reprimand, demotion and termination; and</B></div> <bR> <div> <B>     Be sure you get something in writing from your employee to acknowledge receipt of the written policy when issued and if updated. </B></div> <div> <I>_______________________________________________________________</I></div> <DIV ALIGN="LEFT"></DIV> <div> 1. With permission and based on <U>Privacy in the Workplace - Complex Issues for Employers, </U> </div> <div> by Rodney H. Glover, Partner Wiley Rein & Fielding LLP, Washington, DC. <FONT SIZE="3" COLOR="#0000FF" FACE="Arial" ><A HREF="http://www.wrf.com" TARGET="_top" TITLE="http://www.wrf.com"><U><U>www.wrf.com</U></U></A></FONT> </div> </td> </tr></table></body>