Where does the fallout from off-kilter internet behavior wind up exactly?” In the courts”, says Jim Paul, attorney at Ogletree Deakins. Have you heard about the worker who simply farmed out his daily tasks to someone in China at a comically low pay rate? He kicked back and watched cat videos all day after. How about the guy who got high one morning and went to work in a parks system populated by grizzly bears? He sued for workers’ comp benefits when he was attacked by one of the grizzly bears.
As employees blend the realms of work and private life thanks to technology they feel more empowered to express their beliefs. Because there are more laws encouraging and protecting the individual, your employee handbook is under assault. There exists a preemptive strategy to protect the company. If followed carefully, it might be able to endure changing marijuana laws or workers blasting you on Facebook.
What you need to do
Put a check mark beside each of the following bullet points after your organization establishes a firm policy on it. Your employees need to sign off on it. The lack of clear, legal policy is what employees can use to insist you’ve overstepped your boundaries. Don’t interfere with personal expression.
Technology and legal changes
Technology and legal changes have made it more difficult to regulate employee conduct. And the lines have blurred between what’s considered on-the-job versus off-the-job conduct. As a result, employers are confused about where and when they can put their foot down.
Marijuana use: Several states have legalized medical marijuana, consequently those state laws often remain at odds with federal ones. In the Colorado case Coats v. Dish Network, there was a question.”Can you fire someone for pot use in a state where it’s deemed lawful if federal law still holds?”
Safety issues, workers’ comp issues, and the individual’s right to practice a lifestyle that may be totally at odds with the company’s values are at stake.
Smartphones and safety
Smartphones and safety: Your workers are out on the road every day, sending off a quick email to the boss at a stoplight or checking directions to a client’s office as they cruise along at 60 mph.
What do you have in writing that states they must not engage in distracted driving while on the job?
Companies like Smith Barney and International Paper were forced into settlements after their employees caused accidents while distracted. As a bare minimum, Paul suggests instituting a hands-free policy for employees who feel the need to communicate while at the wheel.
Bring Your Own Device policies: 82% of companies allow workers to use their own laptops, phones and tablets. It helps IT, boosts efficiency and increases retention. The question would be, who owns the information on those devices, who can monitor it, who can search for it? In the case of Lazette v. Kulmatycki, an employer would be accused of violating the Stored Communications Act by digging into a smartphone the employer itself had issued. There would be the data security question: Keep in mind the New York health care provider that had to tell 2,700 members that their data had been hacked because an employee’s device was stolen.
The LinkedIn problem
The LinkedIn problem: Nothing blurs the line between work and private life like LinkedIn. Information about your company and an employee’s affiliation with it sits there day after day, and you are urging someone to use her account to promote you. If she’s separated from the job, who owns the posts she created? What if she never indicates she’s left your employment, creating the illusion she still works for you? According to Paul, much depends on who created the account and when.
Off-the-clock communications: Do you know at what point harmless, casual email checking becomes “significant” work? Or perhaps, when a phone call to an employee at home should start their time clock? The law can’t yet be completely clear about it, your company policy needs to be. Worst-case scenario (aside from committing FLSA violations): You have to crawl to IT to ask them to shut your network down after hours because it becomes too hard to keep workers from squeezing in the extra effort. Don’t let it come to that.
Remember, you ARE the boss of your employees. It would be important to know your rights when it comes to managing and regulating their behavior — both in and out of the workplace.
Web surfing: A worker, found to be checking forbidden sites, would be disciplined. As a result, a
year later, a court finds that you should have gone to the authorities. As a result, his surfing was actually hinting at a future illegal activity that you should have predicted. It is an extreme case that actually happened. A more likely problem is that employees will just spend too much time conducting personal business on the clock. Above all, be specific about the exact sorts of sites you forbid, and the parameters of how much time you’ll allow workers to wander the net.
Device privacy: In Steingart v. Loving Care, a court said that even on work computers, employees have an expectation of privacy if accessing personal email. In Holmes v. Petrovich Development, the result seems to be the opposite. The issue of how deep you can dig into someone’s device, would still be up in the air. Furthermore, make no assumptions of what to expect if an employee cries foul.
Dress codes: Ever heard of the Church of Body Modification? Costco fired an employee with facial piercings when she violated their grooming policy, claiming a deep belief in the church’s principles. The court sided with Costco on this. “My opinion is that the Costco decision would have gone the other way if it had come up more recently,” Paul says. Since then, Red Robin, Jiffy Lube, and Abercrombie and Fitch have all found themselves on the losing end.
Social media: Who doesn’t get upset hearing the story of the employee working for a social media agency who accidentally logged into a corporate account rather than a personal one, an account that just happened to be Chrysler’s? The result would be a quick termination and Chrysler not renewing their contract with that social media firm. The scary things about social media are its lightning speed and the fact that nothing can be taken back once it gets out.