Articles Labor and Employment Law Virtual Performance: Employment Issues in the Electronic Age
| Jurisdiction | Colorado,United States |
| Citation | Vol. 38 No. 2 Pg. 29 |
| Pages | 29 |
| Publication year | 2009 |
2009, February, Pg. 29. Articles Labor and Employment Law Virtual Performance: Employment Issues in the Electronic Age
February 2009
Vol. 38, No. 2 [Page 29]
Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.
Coordinating Editor
John M. Husband, Denver, of Holland & Hart LLP-(303) 295-8228, jhusband@hollandhart.com
About the Author
Tanya E. Milligan is Of Counsel in the Denver office of Holland & Hart LLP.
Communication technology is advancing at a much faster rate than the laws governing the employer-employee relationship. This article addresses the risks associated with electronic communications in the workplace and laws protecting employee electronic activities.
In the electronic age, employers rely heavily on instant communication with clients and employees. It is commonplace, if not necessary, in today's business world for employers to allow employees to access the Internet through employer-owned computers and smartphones. In 2007, 54 percent of in-house counsel responding to a survey stated that their company allows employees to use instant messaging at work, requiring an Internet or intranet connection.(fn1) Additionally, 74 percent of companies allow employees to access the corporate network from their home computers on the Internet.(fn2) These new modes of communication present challenges for employers and employees.
This article discusses the risks associated with employee use of electronic communications and the reasons employers monitor their employees' electronic activities, including e-mails, instant messages, text messages, blogs, and moblogs. The article also explores various causes of action available to employees in connection with their use of electronic communications, including the bases for employee privacy rights, how current federal employment laws protect employee electronic activities, and the possible bases for employee wrongful discharge claims. Attorneys should be aware of these risks and causes of action when counseling employees regarding their electronic activities and counseling employers regarding policies, procedures, and disciplinary actions.
Monitoring Employee Cyber Activities
Employers choose to monitor employee electronic activities for a variety of reasons, from a desire to protect the company's confidential and proprietary information, to improving employee productivity. As explained more fully below, monitoring can lead to an increased risk of litigation. Therefore, the decision to monitor and the manner of doing so should be made with the advice of counsel.
Confidentiality
Most employers invest substantial financial resources in developing their products, services, processes, systems, and methods. The resulting confidential information often is extremely valuable to the business, and it can be financially devastating if the information is revealed to a competitor or the public. Many thefts and inadvertent disclosures of confidential information are committed by company employees, and monitoring employee communications on the Internet can protect confidential information.
Google evidently monitors its employees' electronic activities-it fired an employee after just eleven days of employment for allegedly blogging on the employee's personal website about, in the blogger's words, "vague financial-related things."(fn3) Eli Lilly & Co. recently learned that a mistaken mouse click can be devastating.(fn4) The company was in confidential settlement talks with a government agency concerning its most profitable drug, Zyprexa, when one of Eli Lilly's outside counsel accidentally sent an e-mail containing confidential and comprehensive settlement negotiations to The New York Times. The outside counsel had intended to send an e-mail to her co-counsel; instead, a New York Times reporter with the same last name popped up in the attorney's e-mail contact list.(fn5)
Trade Disparagement and Defamation
The Internet, an easily accessible and extremely wide-reaching medium of communication, democratized the nature of public speech. Freedom of the press, as one court noted, "is [no longer] limited to those who own one."(fn6) Anyone with access to the Internet can "become a town crier with a voice that resonates farther than it could from any soapbox."(fn7)
A company's reputation in the community-for example, for quality of work, timeliness, or goodwill-can be as valuable an asset as any of its confidential information. Goodwill adds tremendous value to a company. Therefore, an employer has a substantial interest in knowing what its employees are saying about the company on the Internet that may affect how its products or services are viewed.
For example, Ellen Simonetti, a Delta Air Lines flight attendant, maintained a blog, "Queen of the Sky: Diary of a Flight Attendant." Simonetti alleged she was fired by Delta for posting photos of herself in uniform on an airplane and for comments posted on her blog that her employer deemed inappropriate.(fn8) Simonetti sued Delta for wrongful termination, discrimination, and defamation.
Although her claims still are unresolved, her termination by Delta, ostensibly to protect its trade name and goodwill, came with the cost of defending this litigation and the countless articles published about it.(fn9) Even so, in November 2008, Virgin Atlantic Airways fired thirteen flight attendants after they posted joking messages on Facebook about passengers and faulty airplane engines.(fn10)
HealthSouth also resorted to litigation to protect its goodwill. A former employee of HealthSouth posted several embarrassing and personal allegations about HealthSouth's CEO and his wife on a Yahoo! Finance message board.(fn11) The individual posted under the name "I AM DIRK DIGGLER," a reference to the male porn star character in the movie Boogie Nights.(fn12) The postings were quintessential defamatory statements-false statements that harm or tend to harm an individual's reputation or standing in the community.(fn13) Although HealthSouth was successful in determining the identity of the blogger and ending the defamation, it is not known what damages HealthSouth recovered. As it turns out, the blogger was a food-service worker at Penn State University, who, as a result of the lawsuit, lost his job.(fn14)
Productivity-"Cyberloafing"
Employees often use employers' online and e-mail services to pay bills, e-mail family and friends, shop for gifts or other personal items, or chat with office colleagues. According to a survey by America Online and salary.com, the average worker admits to wasting more than two hours per eight-hour workday, and 44 percent of respondents cited Web surfing as their top time-waster.(fn15) Increasing productivity and commitment is a constant concern for employers, because wasted employee hours directly affect the bottom...
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