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IndustryWeek Magazine If you don't think Internet or e-mail misuse or abuse can happen in your company, guess again.Just ask the company that got a letter from the FBI last November that said one of its employees was accessing child pornography sites from the workplace. As if that news wasn't bad enough, the company in question had not developed an Internet policy. "That's the problem," says Joseph G. Schmitt, labor-employment law attorney with Halleland Lewis Nilan Sipkins nson, Minneapolis. "A lot of companies just haven't thought about [having a policy] or don't think they'd ever want or need to monitor [electronic communications]. Then a case arises where they need to monitor, and they can't because they don't have a policy in place." That's not an isolated case, either. One-third of the 4,000 executives surveyed three months ago by Management Recruiters International Inc. (MRI), Cleveland, said that even though 80% of their management-level employees now have access to the Internet from desktop personal computers, their companies did not have a policy in place to govern the use of computers and e-mail in the workplace. That's almost incomprehensible given the legal risks with regard to harassment, bias, discrimination, and offensive sexual behavior from Internet and e-mail abuses that recent firings and court cases have underscored, says attorney Elizabeth du Fresne, chairperson of the labor and employment practice of Steel Hector & Davis, Miami. She says that the first place attorneys today turn for evidence in a sexual-harassment or racialdiscrimination lawsuit is the Internet, since that is often where the offensive behavior can be proved. "The Internet is just the source of the problem," says du Fresne. "The problem is that, during the day, someone obtained offensive material from the Internet and brought it into the workplace." "They [employees and managers] all know that they can't hang up a Penthouse calendar in the workplace. They all know that they can't make a racist or sexist joke in the workplace," says du Fresne. "I don't understand why they think they can send racial and sexist jokes via e-mail or download pornography at work. Why they don't understand that the same rules of life apply when they get such material from the Internet and pass it on to others in the workplace, I don't know." And, she says, CEOs are as guilty as their employees. One CEO of an international company settled out of court when it was documented that all his hits on the Internet were porn sites and that he had 81 dirty jokes in his personal folders, classified by category. In another case, the plaintiff's attorney produced six months of sexually harassing e-mail from a CEO, prompting a quick out-of-court settlement. And, in a case where there was never even a lawsuit, a CEO paid $1.5 million to a female employee after he downloaded pornography, showed it to her, and asked her to do the same things. "The whole concept of what computers retain and do not retain is black magic to people," says du Fresne. "They hit the delete button and think it [the e-mail or the picture] went off to e-mail heaven."
was sued because of an e-mail circulated within the company that listed 25 reasons why beer is better than a woman. also for $2.It cost a West Coast company $250. Some even sent to other employees. by far. Some employees simply spent too much time on the Internet. The cases cost those companies adverse publicity and legal costs.2 million. and WorldCom Corp. materials that included videos of people engaged in sex. and First Union Bank last fall announced the firings of employees for inappropriate Internet abuse. -. What triggered those dismissals and similar recent firings at brokerage firms were inappropriate workplace behavior and declining work productivity that could be traced to the use of the Internet. particularly hostile-environment claims. (Each of the courts ruled that a single offensive e-mail -." . "It is only a matter of time until someone opens a door or peers over a shoulder and it becomes a matter of inappropriate materials that create a hostile environment and also undermine your sexual-harassment policy or antidiscrimination policy. even though each eventually was found innocent of wrongdoing for its employees' actions.000 to settle an age-discrimination lawsuit after an e-mail search uncovered that the company CEO had written an e-mail instructing human resources to "get rid of" a female employee. the biggest problem.because of offensive e-mails sent to employees.Microsoft Corp. Xerox Corp.did not by itself constitute a hostile environment for racial bias or sexual harassment and that the companies had acted promptly and appropriately to discipline the employees and prevent such incidents from occurring again. and others sent e-mails with offensive content to other employees. .. other employees aren't as lucky. "Sexual harassment is. . via e-mail." says Halleland Lewis' Schmitt.While most CEOs involved in such behavior retain their jobs. it settled out of court. Still more engaged in heavy Internet surfing of pornographic or gambling sites while at work or ran personal businesses on the Internet during company time.or a handful of e-mails -. "The second biggest issue is the disclosure of confidential information. Those two account for at least 75% of all problems with the Internet and e-mail use and abuse. Another reason is to allow companies to access electronic information should they be involved in legal proceedings stemming from Internet or e-mail activity.After Chevron Corp.against Citibank NA. In addition. Those types of legal risks alone "underscore the folly" of operating without clear ground rules governing the use of the Internet and e-mail by employees while using company equipment on company time. The New York Times. Morgan Stanley & Co. Norton & Blue. attorney in the Tampa office of the Florida-based law firm Allen.) Others haven't been that lucky. Those firings came in the aftermath of three separate but highly publicized lawsuits that were filed in a five-month period from December 1996 to April 1997 -.2 million a sexual-harassment suit involving pornographic messages sent within the company via e-mail.." says Maria Sorolis. such guidelines or policies are needed to prevent the electronic disclosure of trade secrets and confidential information and to help prevent the personal use of electronic technology from reducing worker productivity. settled for $2. .
director of management studies at the American Management Assn. However. chief information officer at MRI. Neil Fox." If that's the case. the reality is that of companies with monitoring policies -.follows them around during such activities and that such activities aren't private. at the very least. The Internet "has become [both] a gateway through which people can divulge company information and a vehicle for harassment.based on AMA's 1999 workplace-privacy survey -. without a policy that reserves for the company the right to monitor -regardless of whether a company ever decides. "Too many employees are still unaware that they are representing their company when they use company equipment to visit a Web site or send an e-mail.Gregory Valenza." says Valenza.a company can run into a slew of legal problems. as the numbers from the MRI survey suggest." says Valenza. (AMA)." says Greenberg. about "the employer being sneaky" and monitoring employee activity. points out." says Greenberg. "Monitoring frequently creates a problem with employee morale. in the long run." There are certain parameters every Internet/e-mail policy should have. E-mail. or needs. still operate without such policies? "Many just haven't thought about it.the overwhelming majority (90%) do only spot checking and usually only after a complaint or when an individual's work performance has dropped. "Employers have a legal obligation to prevent harassment and discrimination in the workplace. he says. you need to give employees fair warning that you have the right to peer in so that they will at least think twice" about their personal Internet and e-mail practices. New York. himself a proponent of allowing personal use of the Internet -. says Eric Greenberg. says MRI's Fox. why do many companies. to use that right -.as long as the work gets done -. "are reluctant to communicate to employees 'news' that they might not want to hear -. which can then monitor. This is not. and Internet sites "save" information on people who visit them so that they can be "identified" when they revisit. "Electronic communications has become a way of quickly and efficiently sending information." says Valenza. Others. "That is just part of taking care of business. If the alternative is not storing and maintaining e-mail files and Internet connections. ." says Schmitt. concurs. But. is routed through a variety of servers before it reaches its final destination. for example.that the company is going to reserve the right to monitor and access the Internet and e-mail usage of its employees." Yet that is precisely why they need to develop and implement policies and communicate them to employees. "So. "each company has to decide what type of policy is appropriate" for it. In addition. You have to let them know" that their identity -. attorney in the San Francisco office of Jackson Lewis Schnitzler pman.as a quality-of-life issue. "It is better to have an open-door policy so that if something offensive occurs the offended employee will feel free to tell management. "A company has to keep good files.and the company's -. what do you do when you receive a subpoena for a lawsuit? "It's easy to try to turn this into a Big Brother issue. adds Valenza.
" says Fox. "A company shouldn't care whether employees spend one or 10 hours on the Internet as long as they are getting their jobs done -. Otherwise. but . for example. Besides." Similarly. the line is becoming blurred between personal time and company time at many organizations. More important. an attorney in the New York office of Phillips Nizer Benjamin Krim & Ballon. So as long as [salaried employees] get their work done." Halleland Lewis' Schmitt agrees. or the like. "Employees are willing to put in 60 hours to 80 hours of work each week." he says. "More and more. Others allowed employees to use the Internet for personal use before and after work and during lunch hours." says Fox. he says. "When an individual visits porn or inflammatory sites. "There is a difference between using the Internet to steal time or to download pornography. that is a more enlightened management approach. found that some companies had an absolute prohibition against personal Internet and e-mail use. "It lets the employee understand what level of personal use is tolerated and clears up the ambiguities for the employees. Norton e's Sorolis agrees." Companies also must understand that they should discipline employees whose problems stem from Internet or e-mail abuse or overuse in the same way they would handle the issue if no electronic communications were involved. is that the policy spells out what's acceptable or not.as long as a person is just visiting noninflammatory sites -. unless it involves harassment. harasses other employees. who specializes in Internet-related litigation. And some permitted either limited or even unlimited personal use. "You have to view theft of time on the Internet -. it might lose an incredibly productive employee. "You have to look at the offense and the offender and whether it is a first-time offense or a repeat offense. or personal phone calls. contends MRI's Fox." Allen. attorneys suggest companies react to excessive personal use of the Internet (some surveys estimate that onethird of Internet usage at work is personal) the same way that they would react when an individual wastes company time in other ways. visits to sex sites. It is probably better that the employer stay away from the issue.and provided that they are not accessing inappropriate sites" or harassing others. "But salaried employees are supposed to get their work done regardless. You have to ask yourself how would you react to a similar situation if there were no electronic issues involved. Someone who is reading Sports Illustrated online. they might be working overtime for three hours at time-anda-half to get their jobs done." says Martin H. it is not a problem. or does stock trading. "A racially charged joke over the Internet system should be treated from a discipline standpoint the same way you would treat a racially charged joke made in another context of the workplace." says Sorolis. discrimination. Samson.the same way you would view abuse of coffee breaks. something illegal."There are as many policies as there are corporate cultures. informal chats with other employees. "is not going to be punished in the same way as someone who reads Hustler online or downloads their images because of the risk that someone else will see that and be offended." "You want to cut off excessive time on the Internet for hourly employees because if they are spending three hours daily on the Internet." says Jackson Lewis' Valenza. or something disruptive to another company's Web site. there should be immediate discipline. MRI's survey.
.they want." . . and the ability to surf on the Internet as their break from work. quality-of-life improvements from their employers -. . in exchange.more flexible hours. the ability to work at home. It is time to focus on the quality and quantity of work rather than the amount of time an employee's butt is in a chair.
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