The Employer's New Minefield ~ The Computer

Every worksite has them, and many are even dependent upon them. But what most employers do not know is that the computer is now one of the most dangerous tools at work. This is because the employee’s use of computers, particularly through company e-mail systems and the Internet, can cause employers liability in many different ways.

One of the most common ways is through sexual harassment claims and discrimination cases. Employees are accessing the Internet and its myriad of pornographic, obscene, and sexually explicit websites while they are at work. These materials are often downloaded into the Company’s own computer network and then used at the whim of the employee, whether as a screen saver or an e-mail to co-workers. Further, the use of the e-mail system has become an anonymous avenue for the telling of inappropriate jokes, which likely would not be told otherwise. Racial, sexual, or religious jokes are forwarded from one person to another; often supervisors and managers never discover the joke. Since users also have the ability to save and print e-mails, combined with the fact that they often are not truly deleted from the system, these messages become compelling evidence of sexual harassment or discrimination by the employer, particularly if the sender is a supervisor or a manager or the supervisor or manager knew or had reason to know of the activity.

Another danger for employers is the possibility of defamation claims. Since the computer is another means of communicating, messages posted through company e-mail system or in the company’s Internet website must be carefully monitored. When employees speak ill of their co-workers, including spreading false rumors about others through the company’s system, the employer may be liable for defamation in allowing the communications to be disseminated, even if the company did not have actual knowledge of the communication.

Another danger area for employers is the possibility that employees may breach confidentiality requirements. Not only can confidential information that is made public harm the company from a business perspective, it can also expose the company to liability if information is made public that the company otherwise had a duty to keep confidential, such as medical information about employees. Given the fact that most employees often have free range in the employer’s computer system, others may access documents without the company’s knowledge. Failing to limit access to confidential information could be a costly mistake to employers.

Employers also need to be aware of individual employee privacy rights as they relate to the computers employees use at work. Employees may successfully argue that they have a right to privacy over matters such as correspondence, even though that correspondence may have been communicated through a company’s computer system. Indeed, under the Electronic Communications Privacy Act (ECPA), the interception and access of electronic communications is prohibited, with certain exceptions. The exceptions allow employers to monitor employee e-mail if the monitoring is a necessary incident to the company’s providing of e-mail or to protect the employer’s rights or property. Since state laws govern most privacy concerns, a close look into the employee’s rights in this area can prove to be worthwhile.

Other legal implications arise from computers in the workplace. Often overlooked are requirements pertaining to intellectual property, including trademark and patent infringement and copyright violations. Documents, images, messages, and information may be passed along through the company’s computer system, and to the extent that employees of a company utilize these protected items, the company may be liable.

Unions intent on targeting and organizing companies commonly use the Internet and e-mail. Specifically, the Internet provides the union with valuable inside information about the company and its individual employees, including home addresses and phone numbers. Company e-mail systems give the union an avenue to communicate with employees while they are at work, connecting people who may not otherwise be connected, and keeping the union’s issues and campaign alive and well.

The computer also brings workplace violence to a new level. Well-publicized is the fact that the Internet contains plenty of access to information not otherwise readily available, such as how to make bombs. Further, company e-mail systems may allow employees to make anonymous threats of violence.

Finally, computers in the workplace can significantly impact the productivity of employees. While employees are supposed to be working, they can e-mail friends, family and co-workers or they can surf the Internet, all virtually undetectable by the employer because those employees are required to work at a computer for the entire workday.

The easiest and safest way to combat these problems is to implement a good information technology policy that restricts employees in the employer’s computer system. A carefully drafted policy should provide the employee with specific guidelines for the use of the company’s computer equipment, network, e-mail system, and the Internet. Given the enormous use of computers in today’s workplace, coupled with the broad range of related legal implications, employers who fail to have an information technology policy are walking in a "virtual" minefield.