The addition of technology to the workplace in the form of e-mail and Internet access offers an employer opportunities to increase the productivity and efficiency of its workforce. E-mail and Internet access, however, also expand the boundaries of the workplace, imposing an increased risk of liability for claims such as hostile work environment.
Under federal and state law, an employer can be held liable for creating or tolerating a work environment that is hostile toward an employee based on the employee’s protected status such as race or color, age, disability, religion, sexual orientation, gender identity or expression or country of ancestral origin. Courts have imposed liability on employers where employees have displayed sexually explicit or pornographic magazines in the office or where it is an office practice to tell offensive jokes.
It has been reported that over 85 percent of employees send or receive personal e-mail at work, 70 percent of those who use e-mail for personal messages have sent or received adult-oriented messages, 64 percent have sent or received sexist or racist messages.
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People are more casual when using e-mail. An individual may not ordinarily tell an offensive joke, but may, without much thought, forward to others an offensive joke that was received through e-mail. It has been reported that over 20 percent of e-users have received sexually harassing e-mail and an alarming 9 percent of employees use the Internet to visit pornographic Web sites on company time. Many people would not do this at home, but will do it in a workplace where they feel fairly anonymous. Display of pornography on a computer screen, however, may make the employer vulnerable to a hostile work environment claim.
For these and many other reasons, employers should develop and implement a comprehensive computer-use policy. The policy should be in writing and should inform employees that all use of the computer is subject to monitoring. The policy should make clear that the computer communications system is company property and is to be used primarily for company business.
Employees should be informed that, although limited personal use of the communications system may be allowed, the information contained on that system is not "personal" or "private" property. It should also be made clear that employees must have no expectation of privacy in the content of any email sent or received over the company system or any information stored on that system. If passwords are allowed or required, employees must be informed that they will be required to provide the company with such passwords when asked by management.
The policy should also include a prohibition against transmission or storage of any threatening, abusive, hostile, harassing, offensive or inappropriate messages or information and that violations will result in discipline and may be cause for discharge. It should be stressed that e-mail and computer files are discoverable for purposes of civil or criminal actions and that e-mail and files are not anonymous.
Every employee should be given the written policy. The employer should then explain the policy verbally, affording the employee an opportunity to ask questions. The employee should sign the policy, acknowledging receipt and understanding of the content as well as consent to its terms and conditions.
Employers should be aware that, because the development of the law is slower than that of technology, there would continue to be unsettled issues to which they must be sensitive. One issue is the extent to which an employer may limit union organizing activity in the workplace and/or during work hours via e-mail or over the Internet. A policy that forbids all such activity may well be struck down as too restrictive in certain circumstances.
Providing employees with e-mail and access to the Internet can increase an employee’s productivity and job satisfaction, but there are attendant risks for the employer. Employers can reduce those risks by developing and implementing a comprehensive computer-use policy. Nonetheless, employers must be sure that when they monitor their employee’s e-mail and Internet use, they have a legitimate business reason for doing so, employees are explicitly made aware of the policy and scope of the monitoring, and that the practice and methods of monitoring are consistently applied. In this way, close encounters between the workplace and cyberspace will "live long and prosper."
Bonnie Porter is an associate with the law firm of Hinckley, Allen & Snyder LLP, practicing in the Labor and Employment Law and Litigation Practice Groups.
