Real Employee Issues in a Virtual Workplace*

By Tanya E. Milligan, Holland and Hart

How do you regulate the use of Internet and communication technology in the workplace to avoid litigation?

Ellen Simonetti, a Delta Air Lines’ flight attendant, was fired for posting photos of herself in uniform on her personal Internet blog. **  Ms. Simonetti sued her former employer for wrongful termination, discrimination and defamation.  Although the merit, if any, of Ms. Simonetti’s claims is still unresolved,*** avoiding such litigation and its associated costs motivates employers to take steps to address employee use of computer and information systems.

Communication Systems Policies
Written policies notify employees of their rights and obligations. An employee’s expectation of privacy, which is the basis for an invasion of privacy action, is reduced or eliminated by way of employer policies and practices.****   Clear policies should inform that there is no expectation of privacy in the employee’s use of the computer, Internet, email or IM communications.  It should be noted that if an employer fails to enforce its policy, a policy might be used against the employer in the litigation context.

Security Issues
Employers invest substantial financial resources in developing products, services, processes, systems and methods.  Such confidential information is extremely valuable and misuse can be financially devastating to an organization.  Similarly, a company’s reputation in the community can be as valuable an asset as any.  Therefore, an employer has a substantial interest in knowing what its employees may be saying to its competitors or its clients about the company on the Internet. 

Monitoring Methods
Most employees and employers are now aware that images and data created or access on a company’s computer cannot be deleted entirely.  Programs are available that allow employers to retrieve documents and emails.  Moreover, an employee’s Internet activity can be retraced to determine which websites were visited, when the sites were visited and how often the sites were visited. 

Global Positioning System (GPS) tracking is an important tool for employers seeking to monitor their employees’ activities.  GPS is becoming more accessible in cell phones, vehicles and security badges.  Similarly, employers are now using radio frequency identification devices in employee badges to identify an employee’s exact location at the worksite. 
Technology continues to develop in the area of biometrics, which is now being used for security access as well as time-clock systems.  As additional monitoring methods are developed, the issue of where the line should be drawn between employee monitoring and employee privacy should be addressed.

Conclusion
Given modern advances in communication, employers may not be able to count on clear guidance, when trying to make employment decisions related to employee use of technology.  Thus, the best practice in this virtual age is to make employment decisions based on a timeless guiding factor: fairness.  In other words, based on training, policies, procedures and past actions, employees should know what conduct may lead to discipline.  As always, employers should base decisions on business-related criteria, act consistently, and follow their policies. 

[*] A more comprehensive discussion of these issues had been published in “Blogging in the Virtual Age;” (co-Authored with Steve Gutierrez) Privacy & Data Security Law Journal, Volume 3, Number 4, April 2008.
[**] “Delta employee fired for blogging sues airline (http://www.usatoday.com/travel/news/2005-09-08-delta-blog_x.htm)”, USA Today, 2005-09-08.
[***] Ms. Simonetti reported in her blog on February 22, 2007 that her case had been stayed while Delta Air Lines is in bankruptcy proceedings (http://queenofsky.journalspace.com/?cmd=displaycomments&dcid=923&entryid=923).
[****] McLaren v. Microsoft Corp., 1999 WL 339015 (Tex. App. May 28, 1999).

For more information about Ms. Milligan, please visit Holland and Hart's website at http://www.hollandhart.com.