Employee Internet Use: Worker Waived Privacy Expectations By Signing Agreement That Employer Could Monitor Computer Use; Creating An Internet Policy

Because employee Internet access in the workplace can raise the potential for abuse and misuse, some employers monitor their employees’ Internet activities. But this in turn raises concerns about employees’ right to privacy. An important new California Court of Appeal decision addresses this issue head-on, ruling that an employee who consented to employer monitoring had no expectation of privacy concerning his computer activities.

Employee Consents To Monitoring

Robert Zieminski, a senior executive for TBG Insurance Services Corp. in Los Angeles, used two TBG-owned computers, one at the office and the other in his home office. He signed TBG’s electronic and telephone equipment policy, which stated that employees could use company computers for business purposes only and not for obscene or other inappropriate purposes, and that improper use could lead to termination. By signing the policy, Zieminski agreed that his computer use wasn’t private and that TBG could monitor it.

Employer Demands Return Of Home Computer

TBG eventually terminated Zieminski for accessing pornographic websites while at work. Zieminski sued, charging that he was really fired to prevent his company stock from vesting under his stock purchase agreement with TBG. He also contended that he didn’t call up the pornographic sites intentionally but that they simply “popped up” on his computer.

In response to the lawsuit, TBG asked Zieminski to return the home computer so it could determine whether Zieminski had looked at similar sexually explicit sites at home. Zieminski refused to turn over the computer, citing his right to privacy because he had used the computer for some personal matters, such as income tax returns. He later argued that employees generally understood that they could put company computers to personal use in their homes even though they signed the computer policy statement.

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Employee Waived Privacy Rights

Now a California Court of Appeal has ruled that TBG’s advance notice to Zieminski of its computer policy combined with his written consent meant Zieminski had no expectation of privacy regarding his home computer use. However, said the court, Zieminski might have a lingering privacy interest in purely personal information he stored on the computer, such as financial data. Thus, a lower court will now determine whether TBG has a right to see specific personal information.

Developing An Internet Policy

This ruling bolsters your right to monitor employee computer usage. And although this case involved Internet access, the court acknowledged that the same principles of advance notice and employee consent apply to monitoring employee e-mail.

Inappropriate employee computer use can pose substantial dangers for employers. You can, for example, be sued for sexual harassment because an employee copied pornographic images off the Internet and showed them to co-workers. You can also be hit with a lawsuit for copyright violations because workers downloaded some hot new software onto their office PCs.

Formulating an Internet policy and monitoring employee Internet activities can buy you a great deal of protection from these online risks. Here’s what your policy should address:

1. Acceptable use. Spell out acceptable online use. You might want to limit it to work-related purposes or perhaps allow more flexibility such as permitting workers to send personal e-mail or to surf the Internet.

    

2. Pornography and harassment. State the types of online conduct that are off-limits, including downloading or sending pornography. Make it clear that harassment of any kind is prohibited, including sending sexually or racially offensive messages or jokes.

    

3. Confidential information. Make sure workers know your trade secrets policy and stress that confidential company information can be inadvertently disclosed over the Internet.

    

4. Limited privacy expectations. State that all messages sent or retrieved over the Internet are company property, and specify under what circumstances employee e-mail or Internet use will be monitored. For example, you may choose to monitor online usage periodically, whenever there’s a business reason to do so, or at any time for any reason. Also state that you will keep copies of Internet or e-mail passwords and that a password doesn’t ensure confidential communication.

    

5. Unauthorized downloading. Inform employees that copying software or other material off the Internet can violate copyright laws unless authorized by the vendor or author.

    

6. Penalties. State that violations will subject the worker to discipline, up to and including termination.

Publicize Your Policy

Distribute the policy to all workers and have them sign an acknowledgment that they have read, understood and agree to abide by the policy. Also, consider having an electronic reminder summarizing your policy appear on the screen each time employees log on. Make your policy part of any computer training you provide.