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Employee Abuse of the Internet: Tips for Corporate Counsel

Articles Published in Maricopa County Bar Association Corporate Counselor, 2002
By Dick Fincher

Last year, Dow Chemical Company fired 50 employees and suspended another 200 employees for sending and storing email messages of pornographic or violent content. An investigation had revealed numerous violations of Dow's code of business conduct, e-mail policy, and anti-harassment policy. How did this happen? What should In-House Counsel do?

As everyone knows, workplace access to the Internet has proven to be a mixed blessing for corporations. On one hand, the Internet has increased productivity by opening up tremendous information and communication for employees. On the other hand, the Internet has increasingly disrupted productivity and created complex disciplinary issues. According to MRI Inc, 64% of employers currently have a policy prohibiting personal use of the Internet from work. Another 40% restrict access to predetermined websites.

This workplace arbitrator has handled over a dozen disciplinary cases involving Internet abuse. My experience is that the key violations include a) accessing pornographic sites, b) sending harassing emails, c) accessing gambling sites, d) on-line shopping during work time, e) unauthorized transmission of confidential information, and f) accessing job search sites. The imposed discipline has ranged from warnings and suspensions to discharges.

Based on the Dow Chemical experience and other cases, described below are several steps for In-house Counsel to consider in their business

1. Engage a select team of employees to study this issue and make recommendations. The team should include human resources, in-house counsel, information technology, and a line executive. You may add your EAP counselor if you expect to uncover compulsive behaviors among employees using the web.

2. Conduct a full cyber-use audit of your Internet systems, email, and Internet use practices. Examine federal and state law. Review any existing policies for their scope and effectiveness. Identify current practices that regulate email and web access. Collect data on Internet usage as available. Determine if there are federal and state laws that restrict your options, including wiretap or privacy laws.

3. Conduct focus groups with your employees. Gain input as to the nature and scope of this issue from all levels of employees, including management. Carefully develop your questions and use a professional facilitator for each session.

4. Benchmark other employers to review their practices and develop "best practices." Obtain complete copies of their Internet policies. Ensure that you understand their philosophy toward web usage and evaluate the effectiveness of their strategy. Meet with in-house counsel of other employers addressing this issue.

5. Draft a complete company policy defining expectations and consequences of employee conduct. Be clear what constitutes abuse. Communicate any monitoring that will be implemented in the future. It is a serious mistake for employers to ignore anonymous e-mails received by employees at the workplace. Consider whether you will assume a "zero tolerance" position. Be clear about the use and maintenance of company-sponsored employee chat rooms or bulletin boards. Also define the rules for at-home Internet usage from company-owned computers.

6. Formally communicate the new policy to the workforce. Develop and implement a full communication strategy, including examples of acceptable and unacceptable conduct by employees. Link the new policy with your corporate values. Clearly state that web-based activity may be monitored by the company. Separately train your supervisors

7. Implement internal procedures to ensure a credible, fair investigation of possible violations and employee complaints. This is a multidisciplinary approach that includes human resources, in-house counsel and information technology. Identify and train a person to conduct the investigations. It is very important that discipline arising from Internet abuse be fully justified by the established facts.

8. Establish and enforce a policy for email retention and security, including password protection. Implement processes to prevent cyber-sabotage by hackers and unhappy employees. Consider encryption technology. Become fully versed on the use of emails as evidence during litigation.

9. If you intend to install Internet surveillance software, fully understand the options and operational issues. "Net Nanny" is the most common software. While monitoring software is the prevalent manner to enforce part of your policy, it is a philosophical step with serious affect on corporate culture and values.

Dick Fincher is a national mediator/arbitrator of workplace litigation. He was a senior executive in law and human resources for several Fortune 50 companies, including Honeywell International and Baxter Healthcare Corporation. He is the Managing Partner of Workplace Conflict Resolutions, an ADR consulting firm in Phoenix. He can be reached at 602-953-5322 or rdf@workplaceresolutions.com


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