Employers are becoming increasingly concerned about potential responsibility for the criminal behaviour of their employees. And rightfully so, since the criminal activities of employees can create civil liabilities for employers.
Various forms of sexual harassment such as grabbing and pinching are considered assault for the purposes of the Criminal Code. In areas such as sexual harassment, employers are directly liable for the actions of their employees because companies are expected to create and maintain a harassment-free environment.
Another issue that has garnered a lot of attention of late is the improper downloading of licensed materials from the Internet, and the copying of information drafted by others can also be seen as theft.
The globalization of the business world, and the fluidity with which the Internet and e-mail connects people, has spawned many new obligations and responsibilities for employers as employees, often inadvertently, create potential legal dangers for companies. In 1995, for example, Chevron Corporation settled a lawsuit for US $2.2 million after e-mails containing such jokes as “25 Reasons Beer Is Better Than Women” was used as evidence in a sexual harassment claim brought by their employees.
Another growing area of concern has been the viewing of pornography at the workplace. Employees who use work time and resources to view pornography put the company at risk of facing both individual and systemic discrimination lawsuits. It can easily be seen as creating a hostile work environment.
In Toronto, a news director at radio station CFRB was recently ordered to apologize to co-workers for constantly visiting pornographic sites from his desktop. What’s more disseminating and possessing child pornography is also a violation of the Criminal Code.
An American company called Surf Watch which makes software for filtering Web content estimates that a third of workers’ net time is dedicated to non-work related activities which is costing U.S. firms more than $1 billion in wasted computer resources. Although certainly not all of these behaviours would be considered a violation of the Criminal Code, employees use of company computer systems is quickly becoming a significant area of concern for employers.
As a result, more and more companies are monitoring employees and their behaviours at work in the hopes of preventing criminal infractions in the first place and protecting the company from liability should they occur. One recent study from south of the border showed that a third of companies are actually videotaping work spaces; 14 per cent are reviewing employee e-mail usage and 13.7 per cent are storing and reviewing computer files.
In the U.S., a congressional bill is looking at creating a special Web domain for dealing with the issues of pornography including a process for facilitating a blockage of pornographic material from corporate computer systems. In Canada, companies have been less aggressive in terms of monitoring activities and drafting legislation. However, the Ontario government is one of many employers that is moving to restrict access to questionable Web sites with the help of special filtering software.
Although most of these behaviours are unlikely to lead to a company being charged criminally, they could potentially cost the company millions of dollars in civil liabilities. At the same time, companies could face disruption to their workforce in the form of police investigations, seizure of work equipment for the purposes of preserving evidence leading to criminal prosecution of an employee, and company representation at court to respond to allegations of any involvement in illegal acts and consequential damage control in terms of libel and slander.
Four points for vigilance against criminal behaviour
Given the serious consequences associated with an employee’s criminal behaviour, it is extremely important that companies consider the possibility of illegal employee activity and create policies to deal with it.
First, proper employment policies should be drafted to ensure that criminal behaviour is outlined, explained and prohibited.
Second, companies should ensure that these policies are strictly enforced. Tolerating violations of the Criminal Code creates the impression that criminal behaviour is acceptable.
Third, if the behaviour in question does not constitute just cause, then a proper and defined progressive discipline process should be in place and practised.
Fourth, workplace monitoring in terms of surveillance may be helpful, but should be limited to situations where a specific concern has been raised or where employees are warned that they may be monitored. Overuse of surveillance can create human resource problems such as demoralization of the workforce, difficulty attracting employees and ultimately the surveillance information may not be admissible in litigation anyway.
While the market for employees is likely to remain bullish for some time and companies will continue to fight each other to become the “employer of choice,” companies can’t afford to become complacent about ensuring appropriate staff behaviour. If they do they could find themselves paying for it in court.
Soma Ray is an associate specializing in employment law with the firm Donahue Ernst & Young. Canadian HR Reporter’s November 6 issue begins a two-part look at issues in employee investigations.