There is plenty of confusion when it comes to monitoring personal Internet usage at work — but employers have substantial rights
By Stuart Rudner
I frequently address issues of internet and social media usage, and the trouble employees can cause online. In recent years, the focus of these discussions has shifted to employee conduct while off-duty, such as Facebook status updates, Twitter tweets and blog posts.
Employers are absolutely entitled to discipline employees for such off-duty conduct when it has an impact on the workplace or the employment relationship. In certain circumstances, summary dismissal will be warranted; the analysis of whether just cause for dismissal exists will be similar regardless of whether the conduct in question occurred on duty or off.
I am still frequently asked how employers should manage “cyberslacking” — personal internet usage while an individual is supposed to be working. At the same time, there is widespread confusion regarding an employer’s right to monitor employee Internet usage, email communications and the contents of their storage space (whether it be on the desktop computer’s hard drive, on the company-provided Blackberry or otherwise). My advice is generally to say employers have substantial rights, and employee rights to privacy do not typically extend to the use of company-provided equipment. Often, people seem to draw a line between monitoring corporate email accounts and monitoring employees’ use of their personal email (such as Hotmail or Gmail) from their desktop computer or company laptop.
As indicated above, my view is that employers are generally within their rights to keep tabs of what their employees are doing online while at work. It should not matter whether they are sending or receiving messages through their workplace email account or their personal email account, whether they are surfing news sites or porn sites, or whether they are downloading pictures posted by friends or copyrighted materials — employers are entitled to monitor usage. While it goes without saying an employee can be disciplined for misconduct such as harassing colleagues, bad-mouthing supervisors or making defamatory comments about the company, the same is true for cyberslacking.
This is not new law. Wasting time at work has always been misconduct subject to discipline. However, such conduct is more widespread today, particularly for those individuals with desktop Internet access. And, of course, it is relatively easy for an employer to monitor what their employees are doing online and to see how much time is being spent not working. One of the examples I often mention is a case that dates back about a decade and involved a government employee that had clocked hundreds of hours of overtime over a period of a few months. Internet usage records revealed he had spent roughly the equivalent amount of time online on non-work related sites, many of them featuring pornography.
Many readers may have heard about a recent Ontario decision involving a teacher that was found to have pornographic images on his school-issued laptop. When those images were discovered by an IT employee doing routine maintenance, the police were contacted and the teacher was eventually charged with various criminal offences.
The trial judge decided much of the evidence had to be excluded. Many observers interpreted this decision as a shift in the law, suggesting an employee’s privacy rights would preclude employers from searching the contents of the hard drive on a company-issued laptop. However, my view is that it is important to remember the context of that decision: A criminal prosecution.
The issue was not whether the employer had the right to review the contents of the hard drive and respond accordingly in the context of the employment relationship. The issue was whether the police, and the Crown prosecutor, had the right to rely upon the images that were found on the hard drive in order to support a criminal prosecution. I remain of the view that employers do have the right to search hard drives on company issued computers, as well as monitor Internet and email usage. I should note that after I initially drafted this post, the Court of Appeal overturned the trial judge’s decision.
That being said, it’s always prudent to have a clearly worded policy in place setting out what the employers’ rights are and making employees aware of their lack of privacy rights. Employers will want to be in a position to rebut any suggestion the employee had no idea their activities might be monitored. Many organizations supplement their policies by having “pop ups” that appear whenever an employee logs in, reminding the employee the organization has the right to monitor their usage and require the employee confirm their understanding and acceptance. While this is not mandatory, it is certainly helpful and provides another way for the employer to show that the employee was aware.
Employers should also be careful to avoid condoning inappropriate conduct such as cyberslacking. Even if they have a well-written policy that has been disseminated to all employees, if the evidence shows it is commonplace within a particular workplace for employees to spend hours on Facebook or other non-related websites, and the employer is aware of this or ought to have been aware of it but did not take any steps to correct it, then the employer will be hard pressed to enforce the existing policy. In such cases, I advise clients to effectively “reset” the situation by clearly advising all employees that regardless of any past practices, the policy will be enforced going forward and that any breaches will be subject to discipline.
As I have often said, technological evolutions are typically brought into the workplace in order to provide increased efficiency. However, many of them also provide new ways for employees to waste time and get into trouble. Employers should keep track of what their employees are doing, both while at work and while off-duty.
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected] You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.