Most employers think it's common sense - if you spend more than half of your time at work surfing the net, you're going to get fired. Well, recent case law from the federal public service indicates otherwise. A senior policy advisor was recently reinstated even though his employer discovered he was spending the majority of his days on non-work-related websites, at times even viewing explicit images on a photo sharing site. The employee claimed he did not realize that his personal internet usage was outside of the norm and he had not been given enough work to do. In another Ontario arbitration, an employee was reinstated after downloading pornography at work because, while the employer had a workplace internet policy, the employer did not draw adequate attention to it. Suspensions were substituted in both cases.
An employee's misuse of a workplace computer can have grave consequences for an employer that go well beyond loss of productivity. The offensive content of websites viewed, or of emails sent, in the workplace can create a poisoned environment. The employer faces the risk of legal actions by employees who are subjected to discrimination and/or harassment by another employee's misuse of their computer. Moreover, misuse of workplace computers can affect the operational integrity of the employer's computer systems. Operating systems can be infected with viruses introduced through inappropriate accessing of websites or through receiving tainted material downloaded from these websites. Employers are therefore fully justified in taking proactive steps, including implementing policies to prevent improper conduct.
The aforementioned cases are obvious examples of computer misuse, but where should employers draw the line? Computer usage policies should be tailored to the workplace. Absolutely prohibiting employees from using workplace internet or email for personal reasons can be more hassle than it's worth. For example, most employers would not want to prevent an employee from quickly emailing his family at work to let them know that he or she is staying late. They would however object to an employee using their network to share copyrighted materials with co-workers.
Wherever an employer ultimately decides to draw the line, the best way to ensure that employees respect that line is to draft a clear policy on internet and computer use, communicate it effectively, and apply it consistently. This can help protect the employer's right to discipline for any violations of the policy, or to install computer logs or conduct network searches in order to protect system integrity and ensure employees remain productive. A well drafted computer and internet policy will let employees know what behavior is permissible, and explain what use of the employer's equipment and network could have implications for their employment relationship. Employees must also understand whether or not they can expect personal communications using the employer's equipment to be private.
As more and more businesses are embracing social networking sites as a cost-effective and innovative marketing tool, it will become increasingly difficult for employers to justify preventing employees from accessing such sites at work. Employers must turn their mind to how employees represent their business on such sites, both in their internet policies and when educating employees' on their expectations. An important but often overlooked part of such a workplace policy should address public communications about the employer made on personal accounts on sites such as Twitter, Facebook, or personal blogs. Employers should remind employees that posting disparaging remarks about their workplace on social networking sites or blogs may be grounds for discipline. Educating employees on their privacy rights on social media sites and blogs vis-a-vis the employment relationship will help to ensure the employer maintains a good public reputation.
It should be remembered that, like any workplace policy, it will be easier for an employer to rely on a computer or internet use policy in court or arbitration if they ensure that employees are routinely made aware of the policy, and that the policy is applied in a consistent manner.
The only explicit thing about your employees' internet use should be the policy that governs it.
David Spears is an associate at BrazeauSeller.LLP. His practice focuses on employment issues. David can be reached at firstname.lastname@example.org or 613-237-4000 ext. 207.