Finding Your Way Through the Internet's Legal Minefield - workplace misuse issues

The Internet and e-mail have brought with them countless business advantages--and, not surprisingly, a goodly amount of trouble spots. They can put a company on the legal defensive (discriminatory or harassing e-mails that return to haunt) or the offensive (employees blasting management on Internet chat rooms). Marlene Muraco, an attorney in the San Jose, California, office of law firm Littler Mendelson, gives an update on this ever-evolving employment-law topic.

What's the most pervasive problem in this area?

E-mail honestly is presenting the biggest problem. There are situations in which people use e-mail inappropriately--to harass somebody, or to tell off-color jokes. People will do and say things in an e-mail that in a billion years they'd never type up in a memo, so you get e-mail playing a role in what would otherwise be a run-of-the-mill employment-law case.

What usually happens?

Say that somebody was terminated for poor performance, and you have a manager who was sending flip e-mails about that person, which he never should have done. It complicates what would have been a very straightforward case. The thing about e-mail is it's never gone--you think it's gone--you deleted it, he deleted it, she deleted it--but it's not gone. There have been cases where the plaintiff's attorney says, "Let my expert have a little look-see on your computer," and all of a sudden all these e-mails appear that you thought were long gone.

What does a good e-mail policy cover?

You need to have something in there like: don't use it to harass; sending, saving, or viewing offensive materials is prohibited. Prohibit them from sending e-mail or other communications that mask their identity or indicate it's someone else. They should not access technical resources using another employee's password. Prohibit solicitation for non-company business or activities; if you allow it, then the unions can come in and use your e-mail systems if they want to organize. Don't distribute or copy copyrighted material such as software through the mail system unless you've confirmed the company has the right to do that. Because the company could theoretically be held liable for the employee's copyright violations made while using the employer's system. I get a copy of Word Perfect at work and distribute it--that's a no-no. Those are all good things to include specifically relating to e-mail.

What about a general technology policy, covering Internet usage?

An employer needs to make a decision about how they want their employees to use the technological resources at work. It's nice to say, Thou shalt never ever send a personal e-mail. Good luck. So decide where the limits can be. And when you write it, there should be a disparity between what you reserve the right to do in writing and how the company actually administers the policy. It's kind of like at-will employment: you want to always reserve the right to terminate someone at will, but not many employers do it; it's not good for morale. So with respect to e-mail and Internet use, the employer should clearly explain that they own all those resources. Then you want to reduce the employee's reasonable expectation of privacy in usage of those resources. The main claim an employer is going to get is an invasion-of-privacy claim.

And a good policy can help stave off those claims?

When a court is looking at an invasion-of-privacy claim, they do a balancing test between what was the employee's reasonable expectation of privacy and what was the employer's legitimate business reason for doing what they did. As an employer, you want to reduce as much as possible the employee's legitimate expectation of privacy. You do that by saying, "We reserve the right to access any of this technology at any and all times. If during the course of your employment you use these systems, you have to know we may be looking at all the information in your e-mail messages or your Internet surfing history." So you have the warning.

Can you use filtering software that blocks access to certain sites?

You can do that legally to block certain sites, and you don't have to tell employees--they will figure it out. You can block whatever kinds of sites you choose. You're providing the computer and access; it's your workplace.

What about monitoring the sites that employees go to?

If you decide to monitor where they go on the Internet, there are different ways to do that. You could log on to my computer and open Internet Explorer and look at my history. That's different from a network that all Internet traffic is going out through, with software in place that automatically generates reports of everywhere that everyone has been every day. I think going on to an individual's computer is more intrusive, but in either case I'd say you can do it--but you have to tell employees you're doing it.

What about Internet chat sites where employees blast their company's policies or a particular manager?

People aren't totally stupid. They don't sign on and say, "I'm Joe Smith and I work here and I think my boss stinks." They get an alias name on Yahoo! or something. If you want to find out who these people really are, you have to institute legal processes to issue subpoenas to third-party providers to find out who it is. But libel is libel, defamation is defamation. Even if someone does it anonymously in a chat room, if you can find out who it is, you still have your same remedies.

So where's the line between libel and just blowing off steam about your boss?

Libel is a matter of state law. In general, libel is writing--so it would be an untrue and defamatory statement about somebody that causes damage to their reputation. In California, for example, there are a group of things you can write about somebody that would per se damage them. Some are quaint, like impugning a woman's chastity. So if you write, "This manager is a slut," that's automatic liability. Accusing someone of incompetence, or saying someone has a loathsome disease constitutes libel. But matters of opinion are not typically actionable--I think such and such is a jerk. It may be false, but it's an opinion. It gets interesting when you have someone running around disparaging the company, and it's not quite defamatory, but you don't want it.

What can you do-anything?

Did they do it on duty or from their home computer? Clearly, if they use the company's resources to do it, that's preventable. If I'm at home and can't sleep because I hate my boss and log on and say all sorts of not defamatory but highly insulting things about him, what can the company do? That will be governed in part by state law. But it's difficult. California this January effected a new statute saying an employer cannot terminate somebody for engaging in lawful conduct away from the workplace. If your employee is in a bar bad-mouthing her boss and it's not defamatory, there's nothing you can do, and there are other states with similar legislation. Now if she's using her work time to disparage her employer, a private employer, you don't have to finance that.

Gillian Flynn is editor-at-large for WORKFORCE.

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