There is always a chance of some negative impact with any
advance in technology. Use of the internet for personal business is one of
those negative aspects for employers. Personal internet usage at work is a
major issue that employers have to deal with in an effort to maintain
productivity. Employers now must guard against employees wasting precious time
(and money) on the job. Checking personal emails, shopping online, fantasy
football and internet games all contribute to time wasted in the workplace.
Social networking has also played its part in lost productivity. Facebook,
Twitter, and Instagram are great sources for information and news but have also
been used as a source of workplace entertainment. Unfortunately, employees have
also used the office computer for online dating and watching adult content. It
all adds up to hours upon hours of wasted time and productivity. It also
translates to millions of dollars of lost profits.
In addition to lost revenue and productivity, inappropriate
internet activity can also pose major liability issues for employers. Clicking
inappropriate links and websites as well as passing on questionable emails can
put computer systems at risk for viruses, which can cause a loss of
confidential information and serious damage to computer systems. Irresponsible
employee behavior can also be costly because they make companies vulnerable to
lawsuits among other forms of disciplinary action for offensive behaviors.
Privacy vs. Policy
Most employers don’t mind if employees spend a little time
on the internet for personal reasons (emphasis on “a little” time). However, a
clear policy must be established to prevent abuse. Employers also have the
right to put measures in place to prevent or reduce employee waste. These
measures are supported by the Electronic Communication Privacy Act (ECPA).
These measures also provide employers with the authority to take disciplinary
actions against employees for violating company internet policies.
So, do employees have any privacy rights at work? Most court
cases involving employee privacy rights regarding internet privacy seem to lean
toward the side of the employer. Employees should anticipate that everything
they do on the computer will be monitored and is subject to being reviewed.
Electronic Communications Privacy Act
The Electronic Communications Privacy Act of 1986 or ECPA
was originally proposed to offer citizens protection against unlawful invasions
of privacy. It is the only government act that protects employee
confidentiality. However, there are a couple of major exceptions to this act
that allows employers the freedom to monitor workplace electronic
communications.
The first exception allows employers to monitor employee
activities for work related issues.
The second important exception is that companies have the
authority to monitor electronic transactions when employees are informed that
they may be monitored. These loopholes have basically eliminated any reasonable
expectations of workplace privacy. Courts have consistently ruled in favor of
employers in cases involving email and internet monitoring.
Smyth vs. The Pillsbury Company
This case involves an employee who was fired after sending a
series of threatening emails. Smyth sued the Pillsbury Company for wrongful
termination. Smyth alleged that the company informed him that his emails would
be private. The court dismissed the case and found that there should be no
realistic expectation of privacy despite his employer’s assurance of email
security. The employer’s right to protection from liability took priority over
the employee’s right to privacy.
Blakey vs. Continental Airlines
This case emphasizes the importance of monitoring employee
activity. The New Jersey Supreme Court ruled that the company could be held
responsible for sexually inappropriate emails sent on a company’s network. The
court also asserted that the company’s computer network was considered an
“extension of the workplace” and that organizations have a responsibility to
ensure that the work environment is free from harassment.
Cases like this make it critical for companies to monitor
employee behavior and take action before it gets to this level. A clear set of
policies and procedures need to be established to manage computer activity and
make employees accountable for their behavior.
Freedom of Information Act
The Freedom of Information Act (FOIA) asserts that anyone
may request to obtain records from any federal agency excluding records that
are specifically protected from the public. Keep in mind that FOIA requests can
also be requested from state and local agencies. Any email or internet activity
by public employees is subject to public exposure. The news media often makes
these requests when there is a high-profile case involving public officials and
employees. Any electronic communications or documentation may be requested. It
is especially important for public employees to be careful about online
activities, as public employees tend to receive more scrutiny than employees in
private companies. It’s important to emphasize that all electronic
communication is subject to FOIA request. This includes private instant
messages (which really aren’t private) and text messages. They can be pulled
and included in an investigation.
FOIA.gov - Freedom
of Information Act
My advice is if there is any doubt, wait until you’re outside of the office. In this age of smart phones and tablets, there is really no need to even take the risk of using the office computer for personal use.
Employers also need to develop a clear computer and
technology usage policy. Initial training during the hiring process and ongoing
training should be offered as a constant reminder. Employers should also have
employees sign off and acknowledged that they were informed of the policy for
future reference. Once employees are made aware of the monitoring policy, they
knowingly give up any protection from privacy on a workplace computer.
