Employees Disciplined for Inappropriate Use of the Internet and Email

HRinfodesk---Canadian Payroll and Employment Law, September 2004

It was recently reported in the Media that a Longueuil-based aerospace company told several employees they had breached company policy. Some received disciplinary notices, some were suspended and others lost their jobs. The employees were from various departments at Pratt & Whitney. The reports indicated that it was not the first time action was taken for unauthorized use of company electronics equipment.

The company declined to say whether computers were used for pornographic purposes and refused to say how many employees were disciplined, suspended or terminated. Several reports indicated that about 130 employees were involved. The company did state that it has a clear policy on how communications equipment should be used. The policy tries to ensure employees have a professional business environment, free of any inappropriate behaviour.

This incident is another clear reminder that companies need to have clear guidelines for employees regarding computer and email usage if they want to regulate and monitor how employees use the Internet and email as well as all other communications equipment in the workplace. Many employers assume that the employers’ ownership of the computing equipment and the right to set workplace rules grant them an unregulated right to monitor employees’ computer usage provided that they disclose the practice. Michael Geist from the University of Ottawa, Faculty of Law, Director of E-commerce Law indicates in various reports on the subject that notice is indeed a pre-requisite to most forms of computer surveillance, however, notice alone is rarely sufficient to support the practice. The employer must analyze the employees’ reasonable expectation of privacy to strike a balance with the employers’ legitimate workplace concerns that support surveillance initiatives.

Legitimate workplace concerns employers’ consider when deciding to regulate and monitor employee use of Internet and Email are as follows:

* Confidentiality and Trade Secret Concerns: ensuring corporate confidentiality. In Nesbitt Burns Inc. v. Lange, to obtain an injunction to restrain a former vice-president from using its confidential information, the company used evidence that a former vice-president had misused the corporate email system to solicit clients by emailing them confidential and proprietary information.

* Workplace Liability: Potential liability resulting from employee computer misuse is a frequently cited concern, particularly where employees use the Internet to access inappropriate content or send such content to other employees via the corporate email system.

* Network Performance: Efficiency of computer network. Information technology managers are struggling with bandwidth traffic slowdowns caused by employees downloading large audio and video files from the Internet.

* Employee Productivity: In a recent study cited in Mr. Geist report indicates that over 75% of companies said that monitoring their employees had helped them fight personal use of the internet during business hours. Another survey indicated that the majority of employees spend anywhere from 10 minutes to an hour every workday surfing sites unrelated to doing their jobs - using their work computers to read virtual newspapers, shop for clothes, or observe porn sites.

* Computer Crime: In the wake of rising computer hacking crimes, copyright infringement, viruses, and terrorism, network surveillance helps to uncover crimes such as embezzlement and fraud. Employer more than ever want to make sure that employees are not engaging in any type of criminal activity in the workplace.

Mr. Geist proposes six factors that should be considered in the assessment of the reasonableness to regulate and implement a surveillance system in light of employee privacy issues. The six factors vary in importance depending on the circumstances:

* The target of the surveillance

* The purpose of the surveillance

* The prior use of alternatives to computer surveillance

* The type of technology used to conduct surveillance

* The adequacy of the notice provided to the target of the surveillance, and

* The protection of other privacy norms such as privacy administration, security, and data retention, once the surveillance data has been obtained.

Employers and/or HR managers should use the following tips to promote proper Internet/Email use and prevent online abuse.

* Create and implement a clearly worded Information technology/computer and e-mail usage policy. Be sure to cover what types of sites are off-limits, as well as when workers are allowed to surf the Web for personal use, whether Internet use will be monitored, how and when e-mail accounts should be used for personal reasons, and the consequences of Internet/e-mail abuse.

* Require employees to sign an acknowledgement stating that they received and read a copy of the policy; and understand its implication and are bound by it.

* Include the misuse of electronic communication technologies in your workplace harassment policies. Several studies have indicated that computer abuse is a prevalent form of harassment between co-workers. Sexist and other discriminatory remarks or jokes are common subjects of e-mail correspondence.

* Audit the use of your Internet/e-mail system. Take into consideration how many employees have access, how much time is spent surfing, what kinds of sites are being visited, and what sort of privacy expectations employees have.

* Train your employees about the proper use of the Internet/e-mail accounts. Go over your policy and explain the negative effects that misuse of the Internet/email can have on the company such as breach of confidentiality, workplace harassment, defamation, loss of productivity, criminal, and other civil liabilities (browsing, downloading, or sending pornographic or other offensive materials form the internet is a form of harassment for which the employer can be held vicariously liable).

* Ensure employees understand that using the Internet and email accounts improperly will lead to discipline including the risk of dismissal.

* Ensure that your employees remember that they represent the company when using the employer’s e-mail account and/or Internet.

* Indicate what sort of discipline employees face when they breach the policy.

* Apply and enforce the policy fairly and consistently.

* Constantly revise policies to keep them up-to-date of legal challenges of enforcement decisions.

Source: Computer and E-Mail Workplace Surveillance in Canada: The Shift from Reasonable Expectation of Privacy to Reasonable Surveillance, by Professor Michael Geist, prepared for the Canadian Judicial Council. www.MichaelGeist.ca

By Yosie Saint-Cyr, Editor at HRinfodesk

Published on HRinfodesk---Canadian Payroll and Employment Law

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