20 Sep Is your employee handbook evolving with technology?
The recent growth in popularity of two personal communication innovations, instant messaging and cellular phones with cameras installed, has left employee handbooks outdated and presents potential liability for employers.
In 2002, vendors shipped 18.2 million camera phones worldwide. In 2003, they shipped 50 million. Instant messaging has become equally popular. A survey by the American Management Association and the ePolicy Institute released July 13, 2004, found that 31 percent of employees use instant messaging at work, and 58 percent of those employees admit to using it for personal banter.
Both of these technologies, if ignored by employers, can quickly lead to lawsuits and/or breaches in confidentiality or corporate security.
The camera phone
The camera phone presents a unique problem to employers, particularly in an office setting where employees may be expected or required to have a cellular telephone.
With a camera phone, an employee, particularly the departing or disgruntled type, can easily take “push-button” digital photographs of an employer’s confidential information, whether that is in the form of client lists, manufacturing design, new marketing schemes, product formula, etc. Once the pictures are taken, they can be sent from the camera phone instantly via Internet anywhere in the world.
In addition, the use of camera phones can easily lead to harassment and/or discrimination, and not just in obvious places like restrooms and locker rooms. Pictures taken from inappropriate angles or emphasizing certain anatomy can quickly lead to a lawsuit. The potential problems presented to employers by the onset of camera phones are exacerbated by the difficulty in monitoring and detecting the use of camera phones. Employers often will be the last to discover camera phones are being used inappropriately.
An employer’s best defense against the inappropriate use of camera phones is a clear policy concerning the use of cellular phones.
An employee handbook policy cannot eliminate the possibility of camera phone abuse, but it can set guidelines and parameters for their use, thereby limiting the opportunity for abuse. Obviously, the policy must be tailored to each employer’s workplace. Some employers may choose to ban camera phones altogether. However, a more practical approach for most employers may be to ban the presence of camera phones in certain areas of the employer’s facilities and/or to ban their use during working hours or on the employer’s premises.
Regardless of the work environment, every employer’s employee handbook should contain a policy regarding the use of camera phones.
Instant messaging
Employee e-mail creates a documented record of casual conversations between co-workers. Even if e-mail messages consistently conveyed the message they were intended to, which is rare once a jury is asked to question their meaning, they can provide documented support of discrimination or harassment charges that can solidify a plaintiff’s lawsuit.
Instant messaging is the next-worse thing. Instant messaging is a turbo-charged e-mail that provides documentation of off-the-cuff conversations between co-workers at a comment-by-comment pace. In general, very little thought goes into instant messaging. However, employers can rest assured that plaintiffs’ attorneys are becoming more and more aware of obtaining instant messaging to search for “smoking guns.”
In 2001, 7 percent of companies polled in the new 2004 Workplace E-Mail and Instant Messaging Survey, performed by the American Management Association and the ePolicy Institute, were subpoenaed to produce e-mail and instant messages in the course of a lawsuit.
In 2003, 21 percent of employers were subpoenaed to produce e-mail and instant messages in the course of a lawsuit. Although 20 percent of employers were found to have a policy regarding instant messaging use and content, only 6 percent had a policy regarding the retention of instant messages.
For those employers who are caught off guard and don’t have an e-mail and instant messaging use, monitoring and retention policy, the expense and difficulty of discovery may only be the beginning.
For example, in Thompson v. United States HUD, the District of Maryland sanctioned the defendant employer for failing to produce in a timely fashion over 80,000 e-mails. The court ordered that the employer could not use any of the 80,000 e-mails that were produced, but the plaintiff could use any of the e-mails in his case in chief or in his cross-examination.
Employers, if they have not already done so, are urged to develop a policy dictating how they handle and retain instant messaging. The policy, at minimum, should include policies for content, use, and retention of instant messages.
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Brian B. Paul is an associate at the law firm Michael Best & Friedrich, LLP, and a member of the Labor and Employment Practice Group.
For further information concerning drafting a policy regarding camera phones and instant messaging for your employee handbook, contact him at bppaul@mbf-law.com or (312) 527-6843, or any other member of the Michael Best & Friedrich Employment Relations Practice Group.
The opinions expressed herein or statements made in the above column are solely those of the author and do not necessarily reflect the views of Wisconsin Technology Network, LLC. (WTN). WTN, LLC, accepts no legal liability or responsibility for any claims made or opinions expressed herein.