Computer and Internet technology are revolutionizing the workplace. Most employees have web access and telecommuting is commonplace. In addition, downsizing and the new economy start-up culture are redefining management structures. In the rush to implement an electronic workplace, employers should take note of potential liability issues.
TELECOMMUTING
Remote computer network access coupled with e-mail and copy/fax machines at home allow employees to telecommute. While offering flexibility, telecommuting raises some thorny legal issues. In January, the Occupational Health and Safety and Health Administration (OSHA) indicated that employers would be responsible for health and safety violations that occur in the homes of telecommuters. While OSHA subsequently withdrew this statement, open issues include: potential employer liability for home-office accidents under common law; responsibility for damage or loss of office equipment; applicability of the employer’s insurance coverage to the home office; and local zoning requirements that may limit some home office activities.
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The remote access needs of telecommuters and other mobile staff in effect, create a hole in security walls with every connection. Procedures should be implemented to allow employee access while keeping out unwanted intruders. This includes periodically updated password protection and informing employees concerning the need for remote access security. To avoid potential legal complaints, these issues should be squarely addressed in a company’s telecommuting and remote access policies.
WORKPLACE HARASSMENT
Another important workplace issue is the inappropriate use of e-mail and the Internet, since misuse can lead to claims of harassment. Examples abound of jokes and graphic images circulated in the workplace that may harass or offend someone.
An employer may avoid liability for harassment by co-workers if it has a policy that prohibits circulation of offensive electronic communications and the employer takes prompt action in response to a claim of electronic harassment. A well drafted electronic communications policy should include: (1) prohibitions on access to offensive and obscene materials; (2) notice of employer monitoring and recognition of no expectation of privacy; (3) recognition of system ownership; and, (4) that inappropriate use will be grounds for disciplinary action. Employers should make sure that the policy is regularly distributed and properly enforced.
ELECTRONIC DISCOVERY
Anyone using e-mail understands the informal candor of e-messages over other methods of written communication. Moreover, these messages are often routed beyond the originally intended audience. Copies of messages may also reside on hard drives and backup tapes. In the Microsoft antitrust case, discovered communications between the company’s managers proved to be very damaging.
During litigation, counsel routinely request discovery of electronic communications. This can be tremendously costly and time-consuming. Accordingly, electronic document retention and e-mail system policies can be extremely important.
Employees should be trained not to put anything in an e-mail message that they would not normally say or put in a written memorandum. Employers should also consider systematic deletion of dated e-mail messages that are not needed for record-keeping purposes.
HACKING
With the latest round of hacking of well-known sites including Amazon.com, eBay, Excite and Yahoo!, hacking prevention is a well founded concern. In those incidents, the hackers penetrated computer systems and directed them to deluge messages on other sites in order to overwhelm the targeted site with high amounts of traffic.
Typically, firewall systems between the Internet and the computer network prevent wrongful access by allowing certain traffic through and blocking other traffic. However, firewalls may be disengaged in order to download certain programs and information.
In order to maintain security in light of increasing remote access needs of employees and customers, new procedures should be developed to avoid security problems. Depending upon security needs and the value or confidentiality of certain information, this may include password protection of certain files and databases and use of encryption technology.
Legal pitfalls can be avoided by conducting an audit before implementing a new technology. New office technology may not be needed by all employees. In some cases where limited access is appropriate, the employer’s potential legal risks can be substantially reduced. Moreover, managers should periodically review existing procedures to ensure compliance.
The new economy workplace increases the need to employ novel office technology solutions. These technologies should be carefully evaluated and appropriate policies should be drafted and enforced to help employers reduce potential legal risks.
Kevin McNeely chairs the Technology Law Group at Partridge Snow & Hahn LLP, and may be reached for comment at kjm@psh.com.
