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By Karen Gentry | MiBiz
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WEST MICHIGAN — An employee comes into work, sits down at his computer and peruses his personal e-mail. He then checks the sports scores and latest news, logs in to Facebook and gets involved with the goings on of his friends. Then he decides to tweet and update his LinkedIn account with his latest work accomplishments before responding to a personal call on his cell phone. A five-minute break becomes a half hour, and before he knows it, it’s lunchtime.

In the past, employers only had to worry about e-mail and “cyber-loafing” on the Internet. Today, there’s also instant messaging, access to personal e-mail accounts on work computers, text messaging from company phones and social media, according to Tara Kennedy, associate attorney with Warner, Norcross & Judd LLP. She helps employers write or review computer and social media policies.

The evolving and rapidly changing technology underscores an employer’s need for a technology policy in an employee handbook outlining what is expected and allowed. Kennedy said most employers include a statement in their computer use policy that says the company owns the computer and everything on it. Policies vary from company to company and culture to culture.

“Each company can have a policy tailored to fit their needs. Some policies could be as short as a paragraph or could be as long as eight or nine pages,” Kennedy said.

Kennedy outlined two anecdotal cases pertaining to technology and communications with one ruling in favor of the employer and one in favor of the employee. In Quon vs. City of Ontario, the U.S. Supreme Court set out to determine whether searching an employee’s text messages was reasonable, a case involving what is commonly called a “reasonable expectation of privacy.” In that case, a police officer frequently exceeded the limit on text messages on his work pager. His employer grew tired of collecting the overage charges and conducted an audit that revealed most of the messages were personal, sexually explicit conversations.

Kennedy said the city’s computer policy stated that users have no expectation of privacy or confidentiality when using city computers, and the city considered pager messages the same as e-mail messages. The city disciplined the officer for violating the computer policy, a decision upheld by the courts because the “search was reasonable and the employee had no reasonable expectation of privacy.”

The case of Stengart vs. Loving Care Agency went in favor of the employee. The plaintiff filed a discrimination lawsuit against her employer, and in anticipation of litigation, the employer hired a computer forensic expert to recover all files stored on her laptop. Files included e-mails the employee exchanged with her attorney through her personal e-mail account. The New Jersey Supreme Court ruled the employee could reasonably expect that e-mail communications with her lawyer through her personal account would remain private. Sending and receiving e-mails via a company laptop did not eliminate the attorney-client privilege.

Policies need to be specific yet be drafted in a broad way to allow for any future technology. Ambiguities in computer policies can cause problems. In the New Jersey case, the court determined the policy used general language, but never defined the terms “media systems and services.”
Businesses need to have a social media policy in place and be aware of gray areas. Policies need to be uniformly enforced because the slightest leeway could lead to discrimination claims, according to Kennedy.

“If you start letting things slide, then the expectation of privacy may be created,” Kennedy told MiBiz.

Maggie McPhee, director of information services at The Employers Association, works with human resources professionals and facilitates roundtables every month on HR topics. Computer technology and social media policies are very much on the minds of HR leaders, she said.

“My big push is that employees need to understand that they should have no expectation of privacy,” McPhee said.
Anything done on a work computer can be found out. The company owns all of the equipment including the software. No downloading without prior approval should be part of any policy, McPhee said.

“Personally, it blows my mind how an employee can even think they have any sense of privacy on a company computer. It’s not their computer,” McPhee told MiBiz.

She said most policies allow for a reasonable amount of personal use, the same as a parent checking on a child after school via phone.

Regarding social media, McPhee said that if “companies don’t want employees to use some of the sites, they should block them.” She said policies should also touch on the use of cell phone cameras that could compromise company information.

McPhee distributed a list of questions on communications policies to HR professionals at a recent roundtable. According to the survey, employers worry about lost productivity with web surfing, spending company time for personal use and liability issues.

“Our company policy states that computers and all files are company-owned, so whatever you do on the computers is company owned,” said Meri Watkins, human resources professional with Home Repair Services. She noted her company is constantly updating the policy. One HR professional wrote “good company policies are essential” and her company monitors work equipment and the home use of company computers.

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TAGS:

• human resources
• maggie mcphee
• social media policies
• tara kennedy
• the employers association
• warner norcross & judd
• west michigan