Employees don't just use the Internet to get sports scores and play games anymore. Their medical records and financial information are readily available online, and while employees may use the Internet at work to confirm their cholesterol test results or verify that their direct deposits went through, others might use it for more nefarious purposes.
But even if workers' online use is completely innocent, employers need to guard themselves against claims of invasion of privacy and discrimination, according to experts.
Every company needs an acceptable use policy that clearly alerts employees that their electronic communications and activity are not private, legal experts agree. As Phillip Matlin, a partner at Los Angeles-based law firm Gordon & Rees, emailed me: "The business may monitor everything the worker does on the business's computer as long as the employer publishes and circulates a clear policy alerting employees that computer and Internet use are not private."
This policy protects the employer if an employee's Internet use is not so innocent, such as if an employee is accessing someone else's personal financial information, he added. In fact, employees should consider everything owned by corporate, says Elliot Lasson, adjunct professor of Employment Law at the University of Baltimore. "Generally speaking, anything that an employee does while on-the-clock on a company work station is property of the company."
However, not all employees know this or expect it, which is why companies must have an acceptable use policy and get employees to sign it.
Employers need to be as explicit as possible regarding the use of company equipment, Charles Krugel, a management-side labor and employment attorney based in Chicago, told me. They also need to specify that if employees still use the company's resources for personal use, there is no guarantee of privacy, and they do so at their own risk, he notes.
Resources also include company-owned WiFi networks, which Krugel says create their own issues when employees connect their personal devices: "You end up with the issue of whether or not it's a secured network." Within their policies, employers need to state that the network may not be secure for personal purposes.
Then employers need to enforce these policies consistently to avoid problems, says Krugel. "If you're an employer who is worried about protecting yourself from legal liability or exposure, consistency will be key, especially when it comes to electronic communication."
That consistency will help companies in the courtroom if an employee ever brings a privacy invasion or discrimination lawsuit.
Still, even if companies have ironclad policies in place, there are always employees who will disregard them. In addition to disciplining employees, Alix Rubin, an employment lawyer based in West Caldwell, N.J., advises companies to stop tracking data immediately once they notice an employee is accessing sensitive personal or financial information from a company-owned computer.
“In addition, the person conducting the monitoring should not be the employee's supervisor or anyone in the employee's chain of command who has the authority to alter the employee's terms and conditions of employment,” Rubin cautions. This helps companies avoid discrimination lawsuits.
In the end, a comprehensive written policy will help protect companies -- but make sure your attorneys have vetted the document before you turn it over to employees.
How comprehensive is your Internet use policy? Have you had problems with employees accessing sensitive data on company time?
— Christine Parizo is a freelance writer specializing in business and technology.
I'm not an attorney either but as far as I've seen the law seems to be written to assume that the employer owns the device the employee uses. With BYOD, obviously that's different.
You're right to an extent. The policies are primarily to protect the employer because government enforcement agencies like the Equal Employment Opportunity Commission, the National Labor Relations Board & the Department of Labor demand that employers put such policies in writing (even if employers aren't legally required to do so). In those agencies' minds, if it's not in writing, then it doesn't exist.
I agree, Mitch. The policy approach seems clear and simple, but confusion exists not only between devices (does a personal device become a work device when it's used for work?) but between accounts. Policies need to get into nitty gritty detail...
That is, if they're needed at all. I'm not an attorney, but I should have thought the law governs what employers can and can't review and respond to; a policy isn't going to change that, is it?
This isn't legal advice but, as a general rule, employers shouldn't read employees' personal emails. However, if an employee is using an employer-monitored, it's very likely that the employer will end up reading those personal emails.
Employers shoud have a clear & easy to understand policy that if employees use company owned or operated IT, then employees should have no expectation of privacy. Moreover, if the employer learns that an employee MIGHT be using company owned/operated resources for criminal activities, those activities will be IMMEDIATELY reported to the proper authorities. Should an employer ignore possible criminal activity, it risks exposure & liability for negligence or even criminal charges; when in doubt, act right away.
Scheduled backups could make life a lot easier for employees who practice BYOD. The data cleansing activity will still be debatable if some data is still resident on the phone. Unless, everything goes to the cloud or to corporate servers the companies will not be satisfied and will resort to remote wiping.
BYOD solves a lot more problems than it gives rise to and as such, in my opinion should be encouraged. Employers, from what I've seen are more threatened from issues arising from the use of BYOD than the employees. whatever policy is determined, employees need to be taken into confidence before enforcing it otherwise there's risk of employees flouting it.
Sandboxing has potential to solve some BYOD problems. Employers would run their apps and store data in a sandbox on the BYOD device. Or vice-versa -- employees could run their own apps and store personal information on the employer's device.
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