Technology in the Workplace – Best Practices for Employers in the Digital Era

Enterprise-wide electronic data systems now routinely allow businesses to accomplish in a moment what a generation ago would have been an unimaginably difficult task. While novel and transformative technology continues to revolutionize the workplace, it also introduces frightening vulnerabilities and new legal challenges.

E-mail, for instance, is the most ubiquitous form of communication in the modern American workplace. It is also the single most fruitful source of evidence in litigation. Indeed, corporate executives attribute 34% of ongoing litigation to e-mail. Despite many businesses having broad “electronic communications policies” that allow them to monitor employee e-mail some courts are starting to find that employees may have a right to privacy in e-mail communications sent using their employer’s email systems, particularly where employers are lax in enforcing their electronic communications policy.

Blogs have also become so widespread that it is not uncommon to find senior executives blogging on a daily basis. Blogs, however, can result in costly and embarrassing disclosures of sensitive and confidential information if they are not monitored on a regular basis. Businesses should have strong policies in place restricting the dissemination of confidential materials.

Develop Best Practices Now

• Notice: Create a comprehensive policy addressing the use of all forms of electronic communications and electronic resources by employees, including computers, the company network, wireless telephones, electronic storage and retrieval systems, and employee blogging. The policy should expressly disclaim any reasonable expectation of privacy in employees’ use of any of these means of communication and other resources, and state clearly that employee use of these electronic resources will be monitored by the company.
• Consent: Have every employee read and sign an acknowledgment of the policy. That acknowledgment should also expressly disclaim any reasonable expectation of privacy in the company’s electronic resources.
• Implementation: Conduct regular trainings for employees about your “electronic communications policy” and reinforce that employees have no reasonable expectation of privacy in their use of the company’s electronic resources. Reiterate that the use of electronic resources is monitored. Consistently enforce your policy in a non-discriminatory manner. In addition, you can and should monitor employee blogging both “on” and “off duty.” Before taking action against an employee for blogging, however, be sure to seek legal advice on the implications of state and federal law.