Policies on appropriate computer use prohibiting the viewing, sending, etc., of sexual material don’t always stop employees from visiting such websites at work. Two recent cases highlight legal ways to investigate this policy violation.
Examine Computer Usage
A male respiratory therapist claimed the hospital where he worked investigated and fired him for accessing pornographic websites because of his gender; the hospital assumed he was guilty because he was the only man in his department. The hospital’s investigation said otherwise.
First, the hospital began its investigation with the male employee because he was the one who was logged on to the computer during the time the sites were accessed. (“Quite sensible” and “hardly discriminatory,” according to a federal appeals court.)
Second, the hospital did not rely solely on the fact that he was logged on when the sites were accessed. In practice, the first person to log on each day stayed logged on, and others used the computer under his/her log-in name. Thus, the hospital also compared work schedules, job assignments, and time records to usage of the computer. The comparison showed he was the only employee who worked on a certain Saturday when there was a substantial amount of inappropriate computer activity. (The hospital “went out of its way” to be sure that the employee who was logged on was also the one who used the computer, said the court.)
Nail in the employee’s coffin: He had admitted to visiting over half of the websites that he claimed had been downloaded by malware without his knowledge. (Farr v. St. Francis Hospital and Health Centers, 7th Cir., No. 08-3203, 2009)
Surveil Computer Usage
If log-in records don’t give you the information you need and you resort to using surveillance equipment, you will need to take extra precautions to protect employees’ privacy rights. The California Supreme Court dismissed the invasion of privacy claim of two female employees who found a hidden surveillance camera in their shared office.
The employer had installed the camera after discovering that someone had been viewing pornography on a computer in that office in the late-night and early-morning hours. The office was accessible by other employees; the two women were not suspects.
An appeals court had ruled that the mere placement of the surveillance equipment in the employees’ office without their knowledge was an invasion of privacy.
The state supreme court disagreed. “An employer may have sound reasons for monitoring the workplace, and an intrusion upon the employee’s reasonable expectation of privacy may not be egregious or actionable under the particular circumstances.”
What this employer did right:
1. The surveillance was prompted by legitimate business reasons — the organization housed abused children.
2. The employer took steps to avoid intruding on the plaintiffs’ privacy, by narrowly tailoring the place, time, and scope of the activation of the surveillance system.
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It was activated only after work hours, after the plaintiffs’ shifts ended.
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The camera’s range did not include the other computer in the office, because no improper use was detected there.
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The surveillance equipment was removed after 21 days and no one had used the computer to access pornographic material.
3. The plaintiffs were not at risk of being monitored or recorded during regular work hours nor were they ever actually recorded.
The court rejected arguments that the employer could have taken less intrusive steps, such as informing the two women of the camera or stricter enforcement of the organization’s computer-use policies, because those steps would only stop the improper use of the computer; they would not have helped the employer identify the guilty party.
This ruling is not meant to give employers in California the green light to use such surveillance measures, particularly where employees are not adequately notified that they may be viewed and taped. Warned the court: “While plaintiffs’ privacy interests in a shared office at work were far from absolute, they had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities — personal and work-related — behind closed doors without their knowledge or consent.” (Hernandez v. Hillsides, Inc., CA Sup. Ct., No. 147552, 2009)
Lessons to learn: To deter employees from accessing inappropriate websites and to make an investigation into such matters easier:
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require employees to log on to computers with individual usernames/passwords;
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limit access to employees’ log-in information (only IT should have access);
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prohibit employees from sharing their log-in information with each other (remind them that they could be wrongly accused of someone else’s wrongdoing); and
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require employees to log off after each use to prevent others from using their log-in information.
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