Employment Law Update. Jonathan Ingber
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The key to monitoring and best practices
If an employer chooses to monitor the internet use, email, text messages, instant messages, or tweets sent or received by employees using company-owned computers and devices, such monitoring should be performed only after the employee is expressly told that monitoring will occur. Best practices followed by most companies call for each new employee to sign an agreement or policy acknowledgment (APA) at the time the employee starts work.
The APA states that the employee acknowledges that the employer will monitor internet use, as well as email, texts, instant messages, and tweets sent or received by the employee (after the fact). The APA also advises the employee of the consequences of a violation of the agreement or policy. Getting a signed APA is key because this document “removes the expectation of privacy” that the employee may otherwise have in his or her internet activities and electronic communications. In turn, removal of that expectation will position the employer to prevail in any later litigation over unauthorized internet use or electronic communications that violate company policies.
Bob worked as a senior executive for an insurance company, TBG. Bob was provided two computers by TBG, one for use at work and one for use at home. Bob signed TBG's “electronic and telephone equipment policy statement” that stated the computers would not be used for “improper, derogatory, defamatory, obscene, or other inappropriate purposes.” Three days before Bob would become vested in TBG shares worth over $1.2 million, TBG terminated him for “repeatedly accessing” explicit websites on the internet while he was at work.
Bob sued TBG for wrongful termination, claiming the inappropriate websites popped up involuntarily. In response, TBG moved to compel Bob to produce the home computer, saying it wanted that computer to confirm whether Bob had accessed similar websites from his home computer. Bob argued that the home computer had personal email and other information that belonged to him, his wife, and children, and that he had a reasonable expectation of privacy while using the home computer. He also accused TBG of using a “scorched earth” litigation strategy, noting that he and other TBG executives anticipated that home computers would be used for personal purposes and were “perks” provided to senior executives. TBG argued that Bob could not seriously claim he had a reasonable expectation of privacy, having signed the electronic and telephone equipment policy statement.
You are the judge in the case. How would you decide the issue?3
Driving and cell phone use
Most companies use the APA, defined earlier, to inform employees that they are required to use mobile communications devices in hands-free mode (where the law permits), and inform employees of their obligations under the law. The APA usually includes language that encourages limiting personal calls, prohibits texting, emailing, instant messaging, or tweeting while driving, and informs employees of safety measures to employ while driving and talking on a cell phone. The following map illustrates the status of state laws that ban or restrict cell phone use and texting as of 2015, based on information from the Insurance Institute for Highway Safety.
The National Safety Council (NSC) estimated in 2014 that 10% of U.S. accidents involved distracted driving, of which 13% involved a cell phone in use. The NSC estimates were compiled due to the belief that drivers significantly underreported cell phone use in crashes.
If an employee is involved in an accident and is ticketed or found to be at fault, the employer should expect to receive a subpoena in any later litigation for (a) company-owned cell phone billing records and (b) driving data (speed, braking distance and force applied, steering corrections, and direction) from immediately before the accident that was recorded by the car's computer system. The employer may have a defense if the employee was not driving his or her car for business purposes at the time of the accident, but that defense will be seriously compromised if the employee was talking on a smartphone with a customer, supplier, coworker, or other work-connected party at the time of the accident. Put another way, plaintiffs' lawyers will seek ways to add the employer as a co-defendant where the circumstances allow. This is because businesses carry insurance policies that typically have higher policy limits than do individual policies, and a larger company is perceived as a deep-pocket defendant that can afford to pay a judgment if it exceeds policy limits.
Knowledge check
1 Having employees sign an APA that acknowledges the employer may monitor the employees' internet use is critical becauseThe employer cannot otherwise monitor the employees' internet use.The APA is an enforceable agreement.The APA removes the expectation of privacy.The employee can use the employer's internet for purely personal purposes.
An employee for a multinational beverage company was driving a company vehicle in Corpus Christi, Texas, in 2010 and talking on a hands-free headset. The employee thought she had a green turn arrow and turned left, crushing a Ford Fusion being driven by Ms. Chatman-Wilson.
As a result, Ms. Chatman-Wilson suffered permanent nerve damage in her back, had to undergo back surgery, and was unable to return to work. The beverage company maintained that it had a cell phone policy that required drivers to use a hands-free device while driving, which the employee had done. The beverage company also stated that its cell phone policy actually exceeded the state law requirement pertaining to driving and talking on a cell phone.
Ms. Chatman-Wilson's attorneys introduced evidence during trial that demonstrated that even drivers using hands-free cell phones suffer a 37% “cognitive distraction” while engaged in a phone call while driving. Also during trial:
The employee-driver testified that she was not aware of the serious risks of distracted driving while using a cell phone, and that if she had been made aware of those risks by her employer, she would not have used her phone while driving.
The beverage company was alleged to have known about the dangers of driving