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Posted: December 28, 2011

The evolving electronic workplace: Part 2

Be consistent about discipline

Ruth Mackey and Todd Fredrickson

Regardless of the material unearthed on social media sites, employers should be careful to handle all discipline in a consistent, non-discriminatory and non-retaliatory manner. In a recent case an airline dismissed a female flight attendant after discovering "inappropriate" photographs of the employee in her airline uniform posted on her blog. The flight attendant sued the airline alleging, among other things, sex discrimination because the airline purportedly failed to discipline male employees who maintained blogs containing similar content.

And if employees are discussing terms and/or conditions of employment, e.g. wages, discipline may be inappropriate in certain circumstances as the employees may be engaging in protected, concerted activity

Benefits of social networking

While there are many cautionary tales around social networking in the workplace, there are definite benefits for both workers and management if social networking is managed appropriately and employers issue clear guidelines on the use thereof. Social networking sites allow a company to brand itself, garnering free and easy advertising and public relations for a controlled image. Sites such as Facebook and Twitter offer employees opportunities to interact with individuals in the same field, to exchange knowledge and to network.

On the other hand, completely banning or significantly limiting employee use of social networking websites, especially outside of work, can negatively impact employee morale and be injurious to the business. Some managers even hypothesize that younger employees work better with social media, and that blocking and banning hurts productivity.

Regulating and instituting social networking policies

In regulating employee use of social media, it is advisable to mirror your personal use e-mail/computer/internet policy unless productivity problems arise. Second, draft a policy specifically relating to social networking:

• Require that all information posted or published by an employee complies with existing policies governing use of confidential and proprietary information
• Prohibit reference to customers, directly or indirectly
• Prohibit use of the logos or trademarks of the company
• Social media activities are subject to all other company policies (i.e., anti-harassment)
• Disclaimers (i.e., employee should specifically state that anything that is posted is not done on behalf of the company)
• Company has an interest in protecting its image, goodwill and reputation; remind employees that online activities may reflect on the company
• Policies are not meant to restrict personal expressions on personal time
• Remind employees to be respectful of co-workers and the company at all times
• Any violation of policy is subject to discipline, up to and including termination

In addition to issuing company policy on social networking, it is also important to train employees on company expectations regarding use of Internet-based social media and appropriate vs. inappropriate use of social networking sites. Employees who understand the personal and professional risks of inappropriate activity will be much more likely to self-regulate their online behavior.

Other aspects of the electronic workplace

Social media aside, the "electronic workplace" is evolving rapidly and employers should exercise caution around the high tech monitoring and surveillance of employees. Tools of the "electronic workplace" include GPS, video surveillance and monitoring of employee communications.

Use of GPS to track employees

Today, tracking devices can be installed on phones, PDA devices, cards, key fobs, etc. Some companies use tracking devices to monitor employee activity, increase efficiency, evaluate customer service and promote responsible employee behavior. Be aware, however, that courts are divided on whether the use of GPS tracking violates privacy protections. Employers should adopt a clear policy on tracking and monitoring, especially since state law may require notification to employees of GPS monitoring.

Additionally, GPS monitoring can raise potential NLRB issues. Tracking might constitute interference with union and/or organizing activity if an employer's tracking includes records of employers' participation at union meetings.

There are also potential wage and hour issues. For example, the question might be raised as to whether the tracking of activities make the time compensable.

Finally, employers should be aware of possible state privacy-related tort claims. State laws may require notice of monitoring and tort action could be taken for a violation of privacy rights. Since the key to tort action is the proof of an expectation of privacy, it is critical to establish a policy regarding the use of company-owned devices. Notice and consent are critical in setting the expectation of privacy or lack thereof.


Video surveillance: location, location, location

Generally, video surveillance of work areas does not violate privacy rights. The general rule is that employees shouldn't be monitored in areas where they have a reasonable expectation of privacy. While on duty, employers should provide notice and obtain consent in instances where employees will be under video surveillance.

Remember that some state laws limit the use of camera and video equipment.


Electronically stored information (ESI)

Electronically stored information (ESI) is information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software. The term has become a legally defined phrase as the U.S. government determined for the purposes of the Federal Rules of Civil Procedure (FRCP) rules of 2006 that promulgating procedures for maintenance and discovery for electronically stored information was necessary. The best practice for avoiding violations is to implement special procedures for protecting medical records, identity information, and other sensitive employee information.
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Ruth Mackey is an Associate in the Denver office of Fisher & Phillips LLP and Todd Fredrickson is the firm’s Denver office Managing Partner.They practice exclusively in the areas of labor and employment law on behalf of employers. Contact them at 303-218-3650 or at tfredrickson@laborlawyers.comor rmackey@laborlawyers.com   

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