How far will your staff push their rights today?
“What happens online … doesn’t stay online.” —from Regulating Individual Expression On and Off the Job: “I Just Want to Be Me!”
So where does the fallout from off-kilter Internet behavior wind up exactly? In the courts, says Jim Paul, attorney at Ogletree Deakins, whose June webinar highlighted some truly jaw-dropping cases demonstrating how far employees will go to be themselves and call their own shots. Have you heard about the worker who simply farmed out his daily tasks to someone in China at a comically low pay rate, then kicked back and watched cat videos all day? How about the guy who got high one morning and went off to work in a parks system populated by grizzly bears, only to sue for workers’ comp benefits when he was attacked by one?
As employees blend the realms of work and private life thanks to technology, and come to feel more empowered to express their beliefs both in and out of the office thanks to more laws encouraging and protecting the individual, your employee handbook is under assault. There exists a preemptive strategy to protect the company, though. If followed carefully, it might be able to endure changing marijuana laws, workers blasting you on Facebook, and a new hire showing up for the first day of work sporting the strangest neck tattoo your customers will ever see.
Here’s what you need to do: Put a checkmark beside each of the following bullet points only after your organization establishes a firm policy about it, and gotten your employees to sign off on it. The lack of a clear, legal policy is what employees can use to insist you’ve overstepped your bounds and interfered with their personal expression.
◊ Marijuana use: 23 states have legalized medical marijuana, yet those state laws often remain at odds with federal ones. In the Colorado case Coats v. Dish Network, the question was, can you fire someone for pot use in a state where it’s deemed lawful if federal law still holds it’s not? At stake are safety issues, workers’ comp issues, even the individual’s right to practice a lifestyle that may be totally at odds with the company’s values.
◊ Smartphones and safety: Your workers are out on the road every day, dashing off a quick email to the boss at a stoplight or checking directions to a client’s office as they cruise along at 60 mph. What do you have in writing that states they must not engage in distracted driving while on the job? Companies like Smith Barney and International Paper were forced into settlements after their employees caused accidents while distracted. As a bare minimum, Paul suggested to his webinar audience, institute a hands-free policy for employees who feel the need to communicate while at the wheel.
◊ Bring Your Own Device policies: 82% of companies allow workers to use their own laptops, phones and tablets. It helps IT, boosts efficiency and even increases retention. But who owns the information on those devices, who can monitor it, who can search for it? In the case of Lazette v. Kulmatycki, an employer was accused of violating the Stored Communications Act by digging into a smartphone the employer itself had issued. Then there’s the data security question: Keep in mind the New York healthcare provider that had to tell 2,700 members that their data had been hacked because an employee’s devices were stolen.
◊ The LinkedIn problem: Nothing blurs the line between work and private life like LinkedIn. Information about your company and an employee’s affiliation with it sits there day after day, and you may even be urging someone to use her account to promote you. If she’s separated from the job, who owns the posts she created? What if she never indicates she’s left your employment, creating the illusion she still works for you? According to Jim Paul, much depends on who created the account and when.
◊ Off-the-clock communications: Do you know at what point harmless, casual email checking becomes “significant” work? Or when a phone call to an employee at home should start their time clock? The law can’t yet be completely clear about it, so your company policy needs to be. Worst-case scenario (aside from committing FLSA violations): You have to crawl to IT to ask them to shut your network down after hours because it becomes too hard to keep workers from squeezing in extra effort. Don’t let it come to that.
◊ Web surfing: A worker is found to be checking forbidden sites and you discipline him. A year later, a court finds that you should have gone to the authorities, as his surfing was actually hinting at future illegal activity that you should have predicted. It’s an extreme case that actually happened. A more likely problem is that employees will just spend too much time conducting personal business on the clock. Be specific about the exact sorts of sites you forbid, and the parameters of how much time you’ll allow workers to wander the net.
◊ Device privacy: In Steingart v. Loving Care, a court said that even on work computers, employees have an expectation of privacy if accessing personal email. But in Holmes v. Petrovich Development, the result seemed to be the opposite. The issue of how deep you can dig into someone’s device, no matter who owns the device itself, is still up in the air. Make no assumptions about what to expect if an employee cries foul.
◊ Dress codes: Ever heard of the Church of Body Modification? Costco sure has. They fired an employee with facial piercings when she violated their grooming policy, claiming a deep belief in the church’s principles. The court sided with Costco on this one—but that was 10 years ago. “My opinion is that the Costco decision would have gone the other way if it had come up more recently,” Paul told the audience. Since then, Red Robin, Jiffy Lube, and Abercrombie and Fitch have all found themselves on the losing end of major decisions protecting employee expression through dress.
◊ Social media: Who doesn’t facepalm when hearing the story of the employee working for a social media agency who accidentally logged into a corporate account rather than a personal one to tweet a profane rant about drivers—an account that just happened to be Chrysler’s? The result was a quick termination and Chrysler not renewing their contract with that social media firm. The scary things about social media are its lightning speed and the fact that nothing can truly be called back once it gets out. The reason why you might want to go over your social media policy this very hour is because half your company probably has a Facebook or Twitter tab open as you read this …
Bonus conundrum! Just in case these issues have all been absurdly easy for you to resolve, let’s throw good old fantasy football into the cauldron. Recently, a woman sued her company because its league had inadvertently created an exclusionary “boys club” and thus, a hostile work environment. Oh, and you were so close to finishing off that handbook …