The ability to search the Internet and communicate through email has become an integral part our daily existence – both at the office and at home. However, the line separating these two worlds is not always clearly delineated. For example, you may find yourself using the office computer to pay personal bills online during your lunch hour or, logging in to the office computer after hours to catch up on work in order to make your deadlines. Some studies suggest that at least 1/3 of the time an employee spends on the computer is for non-work related activities. While many employers understand their employees’ desire or need to do non-work related activities at work. But it should be understood that not all of this activity is innocent. For example nearly 70% of the pornographic material downloaded from the internet is done during the work day. If this is going on at your business it may open you up to a lawsuit for hostile work environment. In addition to incoming material, you also need to keep an eye on what is going out to ensure that client lists and other proprietary information is not being distributed outside of your business – either intentionally or accidentally.
The question, from both an owner’s and an employee’s perspective, should be “are those computer activities private to the individual or are they company property?” The answer to that question boils down to whether the company has a policy in place regulating employees’ computer usage.
A recent law division case reaffirmed the importance having both an established policy in place and ensuring that your employees are aware of that policy. In the case of Stengart v. Loving Care Agency, Inc., an employee used her company-issued laptop to access her personal webmail account to communicate with her attorney regarding the filing of a lawsuit against her employer. After the employee left the company and filed suit the company and its lawyers made a copy of the laptop’s hard drive and recovered the emails to and from her attorney. The former employee attempted to bar the employer from using those emails as she alleged they were protected under the attorney client privilege.
In determining whether or not the emails were protected by the privilege the Court looked to whether the employee had an expectation of privacy in the emails. The Court rejected the employee’s claim by noting that while the law provides some level of privacy to an employee’s use of the a company’s computer that expectation of privacy can be negated by the company’s computer usage policy. In this case the employer had established a policy that provided that the computers were company assets and that all emails, voice mails, internet use and communication and files maintained on those computers were part of the company’s business and client records. The policy specifically provided that the electronic communications were not considered private or personal to the employee.
In light of the employer’s policy on computer use and communication, the Court ruled:
When an employee has knowledge of the employer’s electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer’s computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records, such communications are not . . . to be considered private or personal.
In short a Court is unlikely to enforce any rights to privacy that an employee may have in regards to their electronic communications if the employee is clearly on notice that they should not expect privacy. This means that the employer should have a written policy, signed by the employees, on computer usage. The policy should not only detail the privacy issues but also clearly identify what is considered “appropriate usage” of the computer.
By establishing clear policies in these regards you can also help protect your business against loss of vital information or the creation of an inappropriate work environment.
Finally, even with the right policies in place, keep in mind that a policy that is not enforced is almost as bad as no policy at all. Therefore, you should ensure that your employees adhere to that policy and that any exceptions are clearly dealt with.