Handling Employee Internet Misuse
Advances in computer technology and usage increasingly blur the line between work and home. Employees are now using e-mail and Internet postings to broadcast information and opinions worldwide. Inevitably, some of those employees will post negative, harassing, hostile, false or confidential information and opinions about the institutions where they work and those who work there. In determining how to deal with such matters, you will first need to consider when you can legally monitor computer sites; when you actually will monitor; how you will notify your employees of your intent to monitor; and whether any objectionable postings are legally protected or, instead, form a basis for discipline or discharge. Navigating these treacherous waters is a daunting task, but if you fail to protect your institution’s reputation in appropriate cases, you will likely open the door to even more harm.
Blogs and Chat Rooms
Many employees now use Internet“blogs” and chat rooms to criticize their employers or harass their fellow employees. A blog is, in essence, an electronic Internet diary. Some are open to the public; others require a password. Chat rooms are similar to blogs and function as interactive electronic bulletin boards. Many bloggers and chat-room participants speak impulsively, with little consideration of the consequences to themselves or their employers. Others use blogs to pursue anti-social agendas or simply to get attention, in some cases by posting sexually suggestive pictures of themselves. Examples of inappropriate blogs include the self-titled“Phantom Professor” of Southern Methodist University, who used thinly veiled pseudonyms to demean and belittle students and colleagues, and the adjunct professor at Boston University who blogged lasciviously about his female students.
When you hear of an inappropriate posting, the first step is to determine whether the rumor is true. If you can get copies of the posted material, you will then need to determine whether the statements are legally protected or, instead, warrant remedial counseling, discipline or discharge.
Gaining Access to Suspect Postings
Federal laws limit access to electronic information in various ways, but they also provide some guidance as to when access is permitted. Certainly, you are entitled to review a Website that is open to the public. If the site is password-protected, consider the following options.
• Someone with access might give you a copy of the materials or a password to the site. (The latter option is not without risk but has been upheld by one federal court of appeals.)
• If your institution owns the computer the blogger is using, you may be able to review the communications in your institution’s server.
• Where an anonymous source posts libelous or otherwise harmful materials attacking your school, you may want to file a “John Doe” lawsuit to smoke out the wrongdoer.
• If you can’t get lawful access but suspect who the source is, you can confront that employee and ask whether he or she made the improper posting. (As will be discussed below, you should only do this where the employee has no protected right to post the material.)
Legal Protection
Whether you are a public or private employer will determine how to consider the key question of whether or not the postings are legally protected.
NLRA Rights of Private Sector Employees. The National Labor Relations Act (NLRA) entitles employees (whether or not they belong to unions) to engage in “concerted activity” relating to their wages, hours and working conditions. Their right to speak about such matters extends to forms of speech that would be offensive to most employers. For example, an employer may not simply ban all negative conversations about supervisors. In addition, the NLRA prohibits retaliation against employees for exercising their NLRA rights. Where employees use a blog or chat room to discuss “concerted activity,” an employer that monitors and comments on such communications may also be engaging in unlawful surveillance.
Not all work-related speech is protected by the NLRA. For example, statements disloyal to the institution, reckless or malicious lies, threatening or harassing statements, or disclosure of confidential information would likely be unprotected.
Constitutional Rights of Public Sector Employees. The First Amendment to the U.S. Constitution entitles public employees to voice their concerns about matters of public interest. Public employers may, however, regulate employees’ communications about more personal matters. Where a public sector employee raises both public and private interests, the administration must show that any right to speak of public concerns is offset by other considerations, such as undermining a legitimate goal of the institution, creating disharmony among colleagues or impairing discipline. Some courts find such communications unprotected even where only a potential for disruptiveness has been shown. Examples of subjects likely protected include corruption, wastefulness or inefficiency, educational standards, faculty reductions, student enrollment and grade inflation. Examples of subjects likely not protected include bickering with department heads, individual classroom assignments, responses to parents’ complaints or poor teaching evaluations.
Reducing Your Risk of Harm
Some steps to take to reduce your risk of harm from Internet abuses include the following.
• Put employees on notice that certain forms of off-duty misconduct, including Internet misconduct, will subject them to discipline, up to and including discharge.
• Expect your administrators to help enforce your rules consistently, including notifying you immediately of possible violations.
• When you receive a report of a possible violation, investigate it promptly.
• Considering the number of federal and state laws that restrict employers’ freedom of action in this sensitive area, you should consult your labor attorney before disciplining an employee for inappropriate Internet postings.
Final Considerations
In deciding how you will approach employees’ postings of offensive materials on external Websites, you will need to consider not only the potential harm to your school from such postings, but also the potential harm to your relationships with faculty and staff from being perceived as intruding too far into employees’ private communications. Since it is impossible to monitor all Internet communications by your employees, the logical approach is to investigate only where you have received a report that an employee has posted material that crosses the line of professional or other permissible behavior. In many instances, you will have a duty to investigate anyway, since employers have a legal duty to protect their employees against health and safety risks and against harassment. Beyond that, if you receive a report of offensive materials being posted that are not legally protected, you should discuss with your legal counsel what response would be appropriate in the particular situation. Meanwhile, putting employees on clear notice of your intentions and consistently enforcing your policies should reduce the number of Internet abuses that might require you to take responsive action.
Robert W. Ashmore is a partner in the Atlanta office of Fisher & Phillips, a national labor and employment law firm.
Brian M. Herman is an associate in the firm’s Atlanta office. For more information, visit www.laborlawyes.com.