By Joan Farrell
Less than two decades ago, the cutting-edge technology in the workplace was the fax machine. The workplace of today is dominated by technology like e-mail, instant messaging, voice mail, the Internet, intranet and extranet, cell phones, and blogging.
"Technology has totally engulfed how we do our work," said Joseph Beachboard of Ogletree, Deakins, Nash, Smoak & Stewart P.C. at the 2006 Society of Human Resources Management's Annual Conference in Washington , D.C.
While high tech tools can help employees do their jobs better, they can also create all kinds of employment issues, he said.
E-mail poses problems for employers in part because employees perceive informal e-mail messages as the online equivalent of a casual face-to-face conversation. But an e-mail creates a written document, and "things go into e-mail that people would never put in a written document," said Beachboard.
Harassment claims in particular arise from the perceived informality of e-mail. And while an e-mail may have been created informally, it can later be viewed in a very different light. "E-mail is a written record of who said what to who, when" said Beachboard. "It can come back and be used in a way you never expected."
Defamation claims also arise as a result of e-mail messages. Winning a defamation claim traditionally involved proof of oral statements. Once those oral statements take the form of an e-mail message with the resulting written document, it becomes much easier to prove what was said, Beachboard said.
E-mail also poses challenges for employers seeking to meet their obligation to preserve documents that might be relevant in litigation. Courts are holding employers responsible for retaining important e-mails, said Beachboard. For an example, Beachboard pointed to a $29.2 million verdict in a sex discrimination and retaliation case. In the case, a court levied sanctions against the employer for destroying e-mail messages. Therefore, Beachboard advised, anytime there's a reasonable likelihood of a claim, an employer must retain e-mails that that could be used as evidence in the case.
Instant messages (IM) pose even greater risks to employers than e-mail because it can feel even more like oral communication to people, said Beachboard. As IMs grow in popularity, Beachboard noted, employers may be faced with the prospect of investing in technology that will allow them to save IMs in order to fulfill their record preservation obligations.
In dealing with high technology issues and potential employment litigation, Beachboard advises employers to follow a 3-step plan:
- Recognize technology issues in the workplace.
- Evaluate business needs and technology's impact.
- Make a plan to deal with the risks and execute it.
When creating an electronic communication policy, Beachboard offers the following suggestions:
- Limit employees' personal use of company computers, but avoid having a zero-tolerance policy because it can't be applied consistently. When a policy is applied inconsistently, an employer is vulnerable to discrimination claims. Instead, your policy should say that limited personal use will be permitted, but that it cannot interfere with an employee's ability to do his or her job, Beachboard said.
- Reserve the right to review and disclose all information transmitted or stored in the system--this is absolutely critical to diminish an employee's expectation of privacy. To further diminish privacy expectations, employers should advise employees that their electronic communications are not secure, even with the use of a personal access code and even after they have been deleted.
- Be sure to prohibit derogatory, defamatory, obscene, or otherwise inappropriate messages.
- Strictly prohibit connecting to or downloading sexually oriented information, computer hacking, reproducing copyrighted information, posting confidential, sensitive and proprietary information--include a catchall provision that prohibits any attempt to compromise the security of information contained on company computers
- Establish disciplinary action (up to and including termination) for violations.