Explicit Sites & Emails
Sexually Explicit Internet Sites and Emails in the Workplace: A Discussion of Cases, Arguments, and Recommendations
Amy J. McKee
Labor Relations Representative
Labor Relations Bureau
Department of Employee Relations
State of Minnesota
September 20, 2000
Introduction
The DOER Labor Relations Bureau (hereinafter the Bureau) has recently seen an increase in the number of disciplinary cases involving employees viewing/downloading sexually explicit Internet sites and/or sending/maintaining sexually explicit emails while on State time using State computer equipment and systems. This increase prompted the Bureau to take a closer look at this issue. Specifically, the Bureau wanted to answer the following questions:
1. How is the State as an employer disciplining employees who are either viewing sexually explicit Internet sites or sending sexually explicit emails while on State time and/or using State equipment and systems?
2. How are private sector employers and other governmental entities disciplining employees for this type of misconduct?
3. What right does the State as an employer have to monitor employees’ email and Internet usage?
4. What types of defenses or arguments might the unions proffer in response to the discipline?
5. What other types of related issues may develop in the future?
6. What, if anything, should the State be doing to modify or enhance its existing policies and procedures?
With these questions in mind, the Bureau began an extensive research project, the results of which are presented below.
Question One – Current/Previous Disciplinary Actions by the State
The Bureau does not currently have any cases (a case that have been appealed to arbitration) involving this type of misconduct. The Bureau is, however, aware that some agencies have recently disciplined employees for similar infractions; however, those cases have not yet been appealed to arbitration.
The Bureau has also gone to arbitration on two (2) cases involving this type of misconduct. Those two (2) cases are summarized below for the reader’s convenience.
1. In the case of the State of Minnesota Department of Labor and Industry and MAPE, BMS Case #9801.10, a long term employee was discharged for accessing both sexually explicit (i.e., pornographic) and other non-work related (i.e., gardening) Internet sites, and for inappropriately accessing the Internet. Arbitrator Jay Fogelberg ruled that, although it was undisputed that the grievant committed the charged violations, discharge was too severe of a penalty, finding that the misconduct was not so egregious as to justify bypassing the progressive discipline process. Also, the grievant's prior satisfactory work record served to further mitigate the necessary discipline. The grievant was reinstated, without six (6) months of backpay.
2. In the case of the State of Minnesota Department of Natural Resources and AFSCME, BMS Case #10001.9, the grievant was discharged for accessing more than one-thousand (1000) obscene/pornographic sites and other non-business related sites during work hours over a five (5) day period. The grievant had previously received two (2) oral warnings for unrelated incidents. Arbitrator John J. Prior found that, while the evidence established that the grievant accessed improper Internet sites, discharge was too severe of a penalty in this situation. Arbitrator Prior agreed with the union argument that the employer's imposition of discipline for violations of "zero-tolerance" policies may have lacked consistency. The discharge was reduced to a three (3) day suspension. Backpay was awarded for the reinstatement less the three (3) days.
Further research revealed that the vast majority of State employees who are disciplined for this type of misconduct frequently did not fully avail themselves of the grievance procedures provided for in the contracts. For example, the Bureau is aware of twenty (20) State cases where an employees were discharged for accessing sexually explicit websites and the employees have not pursued arbitration or other litigation. The breakdown for those twenty (20) cases is as follows:
1. In two (2) of the cases, the union grieved the employee’s discharge. In one (1) of those cases, the union withdrew and the other case settled by permitting the grievant to resign in lieu of termination;
2. The employer allowed voluntary resignation in lieu of termination in six (6) of the cases;
3. The employer non-certified the employee in two (2) of the cases;
4. In nine (9) of the cases, the discharged employee took no action; and
5. In only one (1) case the employer issued a three- (3) day suspension for one (1) incident of forwarding a sexually explicit email. The union did grieve the suspension but later withdrew the grievance.
This research revealed four (4) critical points to the Bureau. First, that incidents of this type of misconduct have dramatically increased in the last two (2) years. This point, however, is not surprising as the vast majority of State agencies have only recently permitted widespread Internet and email access to virtually all employees. Second, that in the absence of a complaint, arbitrators may be hesitant to permit immediate discharge for such conduct, favoring the progressive discipline system instead. While this realization is notable, it is also important to bear in mind that this point is only representative of two (2) arbitrations, a number far too small from which to draw any real conclusions. Third, that unions and employees are not pursuing their cases to arbitration or other litigation. Fourth, that the State is consistently implementing an immediate discharge policy for such infractions. The Bureau was pleased to discover this fact, as consistency in the disciplinary process is always beneficial in the event of arbitration.
Question Two – Disciplinary Action by Private Sector and Other Governmental Employers
Once the Bureau had a firm grasp of how the State as an employer was disciplining for this type of misconduct, the research then turned to how other governmental and non-governmental entities were disciplining for this type of misconduct. The Bureau quickly discovered the magnitude of the problem in the private sector, especially in high level positions. For example, one Chief Executive Officer (CEO) of an international company settled out of court when it was documented that all his hits on the Internet were pornographic sites and that he had eighty-one (81) dirty jokes in his personal folders, classified by category. [1] In other cases, major corporations have paid millions of dollars to employees who allege hostile work environment sexual harassment in connection with this type of misconduct. Most notably:
1. A CEO personally paid $1.5 million to a female employee after he downloaded pornography, showed it to her, and asked her to do the same things. A lawsuit was never filed in this situation. [2]
2. Chevron Corporation paid $2.2 million to settle a lawsuit that was filed after an email circulated within the company that listed twenty-five (25) reasons why a beer is better than a woman. [3]
3. Microsoft Corporation paid out $2.2. Million to settle a sexual harassment suit involving pornographic messages sent within the company via email. [4]
Due to the potential liability, major corporations are now faced with a need to monitor their employees’ email and Internet usage and discipline accordingly. Dow Chemical recently fired fifty (50) people and suspended two-hundred (200) more for sending and storing email messages with pornographic or violent content. [5] The New York Times and Xerox Corporation have faced similar disciplinary situations. The research did not reveal any cases where the discharged or disciplined employee filed a wrongful termination lawsuit or pursued another form of alternative dispute resolution.
Even in those private sector companies that provide employees with a procedure through which they may challenge discipline, the cases that have been arbitrated for this type of misconduct are few and far between. In fact, extensive research by both the Bureau and an outside research firm revealed only two (2) private sector arbitration cases that involved this type of misconduct. Those cases are summarized below for the reader’s convenience.
1. In the case of PPG Industries, Inc. (Oak Creek Wisconsin) and Brotherhood of Painter and Allied Trades, Local 579, 113 LA 833 (1999), the employer received a complaint from an employee stating that she had found a sexually explicit email on the computer she shared with a coworker. This complaint prompted the employer to conduct a lengthy investigation resulting in the issuance of a variety of disciplines including the termination of the grievant. The employer argued discharge was appropriate for the grievant as he, unlike the others involved, had lied during the investigation and had intentionally taken steps to circumvent the company’s computer blocking system. While acknowledging that the grievant misused employer property, violated employer policies, and lied to investigators, all of which the arbitrator viewed as serious misconduct requiring stern measures, the grievant’s misconduct was not so much worse than the conduct of the others that discharge was warranted. Also, the arbitrator found that one of the policies the grievant violated had not been distributed to him. The grievant was reinstated without backpay.
2. In the case of Northwest Publications, Inc./Saint Paul Pioneer Press and Newspaper Guild of the Twin Cities, Local 2, 114 LA 761 (2000), the employer suspended the grievant for five (5) days after he brought to work a picture of his wife showing full frontal nudity. The grievant also used company equipment to scan the picture into the computer so that he could display it on his 17” monitor for editing. The grievant then asked a co-worker to assist him in the editing of the photograph and invited another to view the picture. When one of the employees complained, the employer investigated and ultimately suspended the employee for five (5), citing violations of the employer’s Offensive Behavior Policy. Arbitrator Bognanno found that the grievant had in fact violated the policy and acted inappropriately; however, he opined that the picture was not pornographic, and that the behavior was just short of being offensive. The suspension was reduced to a written reprimand and the grievant was made whole.
This research also turned up three (3) arbitration cases from other governmental entities. Those cases are summarized below for the reader’s convenience.
1. In the case of Morrison v. National Aeronautics and Space Administration (NASA), CH-0752-94-0362-I-1, United States of America Merit Systems Protection Board (1994), the grievant received a thirty-five (35) day suspension and reassignment for misuse of government resources and exposing individuals in the work environment to sexually explicit material. One of the grievant’s co-workers complained after being exposed to a sexually explicit image on the grievant’s computer. An investigation revealed over one-hundred (100) sexually explicit images and unauthorized computer on the grievant’s computer. The Board sustained the discipline, noting that an agency need not wait to discipline an employee until his/her inappropriate sexually offensive behavior becomes so severe and pervasive that it constitutes unlawful discrimination. The Board also noted the seriousness of the misconduct and the impact it could have on the work environment.
2. In the case of Independent School District 116 and Individual Grievant, BMS case No. 98-TD-13, the grievant was discharged for using a school computer to download pornographic images from the Internet. The grievant had previously been charged with fondling a female student, but this incident was not reported to the School Board. At arbitration, the union argued that the employer did not have an Internet policy restricting Internet access, that the discipline was too severe, and that inclusion of the prior fondling charge in this discipline was double jeopardy because the grievant received an oral reprimand for that misconduct. Arbitrator
Sharon K. Imes found that discharge was improper and that there was little evidence that the grievant’s downloading of this material had the potential to harm the District, its students or its staff.
3. In the case of Independent School District 206 and International Union of Operating Engineers Local 70, BMS Case No. 99-PA-1203, a nine (9) year employee was discharged for unauthorized use of a computer and viewing pornographic material with a student. The grievant acknowledged misusing the computer, but denied viewing pornography with a student. Arbitrator Daniel G. Jacobowski found that the grievant had engaged in wrongful and unauthorized use of the computer; however, the evidence did not persuade the arbitrator that the grievant had viewed pornographic material with a student. Arbitrator Jacobowski ruled that discharge was too severe a penalty in this case and reduced the discharge to a written reprimand. The grievant was made whole for backpay and benefits.
Finally, the Bureau is also aware of several cases involving this type of misconduct among city government employees. The majority of city governments are also discharging their employees for such misconduct. Specifically:
1. The city of New Brighton discharged an employee for accessing sexually explicit Internet sites on a computer located at the front desk of a Community Center. The employee did not pursue arbitration or any other form of litigation.
2. The city of Brooklyn Center discharged two (2) employees for accessing over 3,500 sexually explicit Internet sites over a two (2) day period. One (1) of these employees pursued no further course of action while the other denies the charge, and is attempting to challenge the decision. Neither of these employees were union members.
3. The city of Stillwater permitted an employee to voluntarily retire in lieu of termination after sending a sexually explicit email to colleagues in other city governments. Upon receipt of the email, numerous city administers called and complained about the content of the email.
4. The city of Minneapolis discharged a high school teacher for accessing and downloading sexually explicit and violent Internet sites. The teacher did appeal this decision to arbitration through his/her union. A decision in this case is pending.
5. The city of Mankato gave a five (5) day suspension to an employee who forwarded a sexually explicit email that made analogies between baseball and sex.
The above-discussed cases are important for several reasons. First, they hint at the liability that an employer may face when an employee accesses sexually explicit material on the Internet or forwards a sexually explicit email. There seems to be much more focus on how to address the effects this type of misconduct may have on fellow employees who are exposed to the material than on whether or not the disciplined employee will challenge the discipline. Employer liability in this type of case can be enormous, and employers are seemingly focusing on that fact. Second, this type of misconduct is rapidly becoming a major disciplinary issue for employers whether they are private or public, governmental or non-governmental. These cases also provide some insight on how to better deal with this type of misconduct and how to succeed at arbitration. For example, an Internet policy that is widely dispersed and known among employees is critical. Third, these cases, or really the lack of cases, also evidence the fact that employees are accepting the discipline that they are given for this type of misconduct and retreating. The Bureau believes this acceptance evidences an acknowledgment on the part of the employee that this type of behavior is in fact very serious misconduct that is deserving of the penalty of the employee receives.
Question Three – The Right of the State to Monitor Employee Email and Internet Usage
This section will deal exclusively with the right of public employers to monitor the email and Internet activities of its employees. Private employers and public employers typically have different legal concerns in this area (i.e., the Fourth Amendment) which could result in a different analysis and perhaps a different conclusion. Therefore, nothing in this section is to be construed as applicable to the private sector, and the Bureau makes no attempt to offer any analysis on what rights a private sector employer may or may not have to monitor employee email and Internet usage. Lastly, this section should not be construed as exhaustive and/or as legal advice on how to approach such a situation.
The Bureau knew that State agencies clearly had the capacity/ability to monitor the email and Internet activities of employees, but the question that now needed to be examined was what legal right does the State have to monitor this usage and are there any restrictions to this monitoring? What quickly became apparent is that the case law in this area is also new and minimal. What also quickly became apparent is that public employers face two (2) main potential roadblocks when it comes to monitoring employee email and Internet usage: Fourth Amendment privacy issues [6] and First Amendment free speech/expression issues [7] .
The first issue that a public employer faces with the monitoring of employee email and Internet usage is one of privacy, which implicates the Fourth Amendment to the United States Constitution. A public employer must balance its employees’ Constitutional rights and reasonable expectations of privacy against its own interest in conducting the search.
The seminal case in this area is O’Connor v. Ortega, 480 U.S. 709 (1987). [8] In examining this tenuous balance in light of the facts of the Ortega case, the Supreme Court held that public sector workplace searches are constitutional if they are tailored to the government’s interest in the efficient and proper operation of the job site. [9] The Court also found that employee searches and surveillance are to be examined on a case by case basis with the totality of the circumstances considered. [10] The Court held that an employee’s constitutional rights are violated only if the employee has an expectation of privacy that society is prepared to recognize as reasonable. [11] The Court went on to determine that a search conducted by a public employer is reasonable when the employer offers legitimate business reasons (i.e. employer’s need for supervision, control, and efficiency in the workplace) for the search and those reasons outweigh the employee’s protected privacy interests. [12] In light of this decision, public employers generally enjoy wide latitude in searching employee work areas, including the employee’s computer. [13] Usually if employees are made aware of the types of searches that may be conducted and the areas that may be searched, their reasonable expectation of privacy is reduced. [14]
Interestingly, the United States District Court for the Eastern District of Pennsylvania recently dismissed an invasion of privacy claim filed by an at-will employee who sent email messages the employer found inappropriate, unprofessional, and offensive. [15] The employer in this case had made numerous assurances that employee email would not be monitored, read, or used as the basis for disciplinary action. [16] Despite these assurances, the court found that the employee’s expectation of privacy was not reasonable. [17]
Next, public employers should consider the implications of the First Amendment as emails and Internet usage likely implicate free speech and/or expression issues. As a general rule, public employees, when acting in their capacity as public employees, enjoy limited free speech/expression rights. [18] There are two major cases in this area: Pickering v. Board of Education, 391 U.S. 563 (1968) [19] and Connick v. Myers, 461 U.S. 138 (1983) [20] . In Pickering , the Supreme Court decided that a public employee does not relinquish First Amendment rights to comment on matters of public interest simply because they work for the government. [21] The Court also articulated a balancing test in this opinion. [22] This balancing test was later refined in Connick. In Connick, the Court found that if an employee’s speech cannot be fairly characterized as constituting speech on a matter of public concern, then it is not necessary to scrutinize the reasons for discipline. [23] The Court reasoned that “[w]hen an employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” [24] Further, the Court found that “[w]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” [25] The Court also found that an employer does not have to wait until the speech disrupts the office and destroys working relationships before it takes action. [26]
The findings of the Court in Connick have recently come into play in the Supreme Court of the State of Virginia . In an effort to prevent the type of misconduct this paper is addressing, the Legislature for the State of Virginia passed a law that made it illegal, unless specific permission was sought and granted by the agency head, for a State employee to utilize State owned or leased computer equipment to access, download, print or store any sexually explicit material. [27] Six (6) college professors who alleged that this law unconstitutionally interfered with their First Amendment free speech rights subsequently challenged this law. [28] The Virginia State Supreme Court turned to the balancing tests and standards articulated in Pickering and Connick. [29] Finding that the essence of the professors’ claim was that they were entitled to access sexually explicit material in their capacity as public employees, the court held that the professors could not demonstrate that the speech was made in their capacity as private citizens speaking on matters of public concern. [30] Therefore, the statute could limit the professors’ speech/expression in this fashion without running afoul of Constitutional mandates. [31]
What this means for a public employer is that there is a reasonable amount of leeway to search employee emails and monitor Internet usage because the expectation of privacy is lessened, and free speech protections are diminished.
Question Four – Union Defenses to Discipline and the Employers’ Response
Through reviewing available cases and articles in preparation for this paper, four (4) possible arguments that unions may advance in defense of such misconduct came to light. The discussion below about these arguments is not meant to be exhaustive, but rather provide the reader with some ideas as to what the Bureau believes to be the unions’ possible arguments. Following a discussion of the unions’ arguments will be a discussion of the arguments the Bureau either currently advances or will advance, in these types of misconduct cases.
The first argument the unions may advance in defense of such an allegation of misconduct is that the accused employee merely misused State time and equipment, which is not unlike taking too long a break or using the State provided computer for personal business, and therefore, the discipline given in this case is unequal or discriminatory. Under this defense, the unions’ will try very hard to de-emphasize the content of the email message(s) and/or Internet site(s), instead focusing on the general act of misconduct, i.e., misuse of time, misuse of equipment. The unions may then couple this with evidence of any and all discipline the employer has given with regards to this type of “misconduct” (e.g., Employee “X” took excessively long breaks and only received a written reprimand or Employee “Y” used a State vehicle for personal use and only received a three day suspension) that is different from the discipline this specific employee received. Under this argument, the unions do not dispute that the misconduct occurred, but rather that the discipline was discriminatorily administered when compared to other like misuse of State time and equipment.
A closely related second argument the unions may advance is that the discipline is too severe for the misconduct. As is the case with the first argument, the unions again would not be arguing that the misconduct did not occur, and likely would acknowledge that the grievant “committed the crime.” What the unions would argue, however, is that the “punishment did not fit the crime.” The unions would likely argue that this misconduct is not so egregious as to warrant circumventing the progressive discipline system and jumping straight to discharge.
The third argument the unions may advance is that the various agency Internet/email/computer policies do not say that immediate discharge will result for accessing/emailing sexually explicit material but rather that discipline, up to and including discharge, may result. The unions would argue that the inclusion of the phrase “up to and including” and the word “may” implies that some form of discipline other than discharge is likely under this policy. Also, the unions would argue that failure to clearly state that discharge will result for accessing/emailing presents a notice problem because although employees knew discipline “may” occur for this type of misconduct, they did not know discharge was imminent.
Lastly, the unions may attempt to argue that the accused employee is addicted to sex, or “surfing” the Internet, so s/he should not be held responsible for the misconduct or should be given a second chance because s/he has been “rehabilitated”. This argument would follow the same lines as the “alcoholic” or “drug addict” defense when an employee is disciplined, for example, for excessive tardiness or abuse of the sick leave policy. The unions could encourage their grievant to seek assistance from a mental health professional and then produce evidence of such assistance at the arbitration while arguing that the grievant is an addict, but has sought help for which s/he should be credited, not punished. Although the Bureau was unable to find a single case or article where the unions or an attorney advanced such a defense, the Bureau still believes the unions could advance this argument in some cases. The Bureau has also consulted with the Employee Assistance Program with regard to the possibility and viability of this argument.
The employer is not without its valid and strong arguments in response to those advanced by the unions. A review of the research in this area revealed several arguments that the Bureau can add to the arguments it already advances when faced with this type of misconduct. The Bureau anticipates additional arguments to surface as this area of misconduct becomes more developed through new cases.
First, in response to the unions’ attempts to de-emphasize the content of the emails/Internet sites, the employer would strongly emphasize the content of the emails/Internet sites. The sexually explicit content of the emails/Internet sites is extremely important because it is this fact that separates this type of misuse from any other type of misuse for two reasons. One, the sexually explicit nature of the emails/Internet sites opens the employer up to enormous legal liability, as discussed above. The employer could face complaints and lawsuits from co-workers, the public, and clients. The employer has the right to protect itself from this potential liability. As discussed above, there are cases that an employer can turn to that discuss this argument and the fact that an employer need not wait until the introduction of sexually explicit material into the workplace constitutes illegal harassment before it takes action. This liability could also extend to exposing Information Technology people to sexually explicit material when the employer must ask them to monitor, investigate, or retrieve sensitive documents from an accused employee’s computer. Two, the employer’s reputation and public image are at stake if a client or member of the public were to accidentally be exposed to the sexually explicit materials. The employer has the right to protect that reputation and image. If a member of the public or a client were to be accidentally exposed, the employer could suffer paralyzing consequences through loss of business, loss of respect/trust, embarrassment, and public scrutiny. This risk is even higher for the State because as public entities, they are accountable to the taxpayers.
In response to arguments that the “punishment does not fit the crime,” the employer would again need to focus on the content of the emails/Internet sites and argue that this is exactly the type of conduct that is so egregious, so offensive, and so legally charged that the employer has no choice but to circumvent the progressive discipline process and immediately discharge. The employer may also buttress this argument with evidence of previous situations where an employee was discharged for this type of misconduct. This is one of the reasons why it is important for the employer to consistently discharge employees for this type of misconduct. It will be more difficult to succeed on this argument if the employer has administered discipline that is less than discharge.
Third, the employer will want to tie together all policies the accused employee violated to fortify the discharge. For example, if Employee “A” forwards a sexually explicit joke to Employee “B” and Employee “B” is offended so s/he complains, Employee “A” may have violated the employer’s sexual harassment policy in addition to violating computer/email policies (telling the joke verbally and emailing the joke are equivalent behaviors). If one couples these policy violations with misuse of State time and resources and suddenly the employer has a whole host of reasons why discharge, as opposed to progressive discipline, is warranted. All of these policies contain may language that violations are serious and discharge could result, so the employer would need to argue that a reasonable person should have known that multiple violations could lead to discharge.
Finally, the addiction argument is slightly more problematic for the employer. There are no known cases where this defense has been asserted so it makes the success of such an argument by the unions all the more elusive. In the absence of any precedent, the employer would likely advance the same arguments it advances in drug and alcohol addiction cases with the possible caveat that this type of addiction has not yet been recognized as a justification for misconduct in the employment setting. The Bureau could also argue that this type of behavior is a compulsion, not an illness, which cannot justify the misconduct anymore than a compulsive liar could justify falsification of documents because of his/her compulsive behavior.
Question Five – Related Issues of the Future
There are two (2) main issues that the Bureau expects to encounter in the future that are related to email and Internet access. The first issue presents a liability of depths not yet known. The Minnesota Human Rights Act [32] defines twelve (12) protected traits. [33] Each State agency with twenty-five (25) or more employees is required to have a policy prohibiting harassment and/or discrimination based on any of these protected traits in the employment arena and a complaint procedure that is designed to handle complaints of this nature. [34] Theoretically, an employer could be liable for an employee’s accessing any Internet site or sending any email that is derogatory to any of the listed traits. For example, most employees know that if they were to bring in posters and/or tell jokes that are demeaning of one’s sexual orientation, they may face harassment allegations by an offended co-employee. The fact that the employee “tells” (sends) the jokes or “shares” the pictures through email is irrelevant as the liability for the employer still exists, as does the possibility of harassment allegations against the offending employee. It is important to keep in mind that it is the impact the content of the message has on an “exposed” employee that is relevant, not the mode through which that message is shared. As hate organizations increase their Internet activities, the Bureau expects this issue to quickly enter the employment area [35] .
The second pre-eminent issue is the fact that some employees spend an excessive amount of time on innocuous or non-business related Internet sites. While a co-worker or member of the public may not be offended, and there may be no legal liability for the employer, when an employee reads USA Today on-line or visiting the Sports Illustrated website for news/sports updates, there is still a detriment to the employer in three regards. First, there is misuse of State time and equipment issues. The employer has supplied access to the Internet and email systems in an effort to make employees more efficient and increase their ability to do their jobs. While incidental personal use of these resources may pose little problem, excessive use violates established policies, taxes the system, and wastes public money. Second, if employees are spending excessive amounts of time on non-business related Internet sites, they likely are not doing their jobs, and may result in overtime. This type of activity potentially places an enormous financial burden on the employer. Third, this type of excessive Internet/email use for personal reasons may affect employee or work group morale, causing complaints from within the work group that the accused employee is no longer contributing to the work group because of time spent on the Internet or personal emails.
Question Six – Recommendations
The following is a list of recommendations the Bureau believes may provide some assistance in this area of rising problems. While this list is not exhaustive, it is a good start in the right direction.
1. Notify employees of the employer’s right and intention to monitor employee email and Internet usage.
2. Make it clear that an employee should have no expectation of privacy with regard to any information on a computer system owned and controlled by the employer.
3. Review existing computer/email/Internet policies and clarify the intent and expectations of the policies. Make sure policies contain prohibitions against accessing and emailing sexually explicit materials, entering chat rooms, bulletin boards, etc.
4. Make it clear that the employer will not tolerate defamatory, discriminatory, or threatening email.
5. Consider adding language to computer policies that states email and Internet communications must be professional and respectful.
6. Cross-reference computer policies and discriminatory harassment policies.
7. Consider including immediate discharge and “zero tolerance” language in computer policies for certain violations such as accessing/sending sexually explicit, harassing, or defamatory materials.
8. Consider re-issuing computer/email/Internet policies, highlighting portions of the policy at staff meetings, and/or adding a pop-up box every time an employee logs into the system.
Conclusion
While this paper is intended to provide the reader with information on the current state of this up and coming type of misconduct, it is not intended to be exhaustive. The Bureau suggests that readers review their agency’s existing Internet and email policies. When reviewing the policies, check to see if the policy contains “discipline, up to and including discharge” language. If it does, the Bureau strongly encourages removing such language. Instead, consider language that clearly states accessing sexually explicit Internet sites or sending and/or maintaining sexually explicit emails will not be tolerated, and that violations of this prohibition are grounds for immediate discharge. It may also be appropriate to include similar language for accessing offensive, obscene, or “hate” Internet sites or sending and/or maintaining emails of a similar content. Lastly, the Bureau encourages the Human Resources community to work closely with their account representative at the Bureau, as that individual can be a valuable resource when faced with such an issue in the workplace.
[1] “Inappropriate Internet Surfing”, IndustryWeek Magazine. Available at http://www.humanlinks.com/manres/ethics1.htm
[2] Id
[3] Id.
[4] Id.
[5] “Dow Chemical Fires 50, suspends 200 For Sending and Storing Offensive Email,” Human Resources Report, Bureau of National Affairs, Vol. 18, No. 31, page 849 (8/7/00).
[6] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. Available at http://caselaw.findlaw.com/data/constitution/amendments.html.
[7] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. Amend. I. Available at http://caselaw.findlaw.com/data/constitution/amendments.html.
[8] This case involved the privacy claim of a doctor that arose out of a state hospital official’s search of the office, desk, and file cabinet of a physician suspected of mismanaging the hospital residency program. O’Connor, 480 U.S. at 712 – 713. The desk contained some personal information, records, and gifts. Id. at 718.
[9] “Electronic Interaction in the Workplace: Monitoring, Retrieving and Storing Employee Communications in the Internet Age,” Mark S. Dichter and Michael S. Burkhardt. Available at http://www.morganlewis.com/art61499.htm.
[10] Id.
[11] Id.
[12] Id.
[13] See generally The United States v. Mark L. Simons, 29 F.Supp.2d 324 (E.D.Va. 1998) and Williams v. Philadelphia Hous. Auth., 826 F.Supp.952 (E.D.Pa. 1993). Id.
[14] Id.
[15] See generally Smyth v. Pillsbury Co., 914 F.Supp. 97 (E.D.Pa. 1996)
[16] Id. at 98
[17] Id. at 101
[18] See generally Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983).
[19] This case involved a teacher who was discharged for writing and publishing in the local newspaper a letter criticizing the School Boards’ allocation of school funds. Pickering, 391 U.S. at 564.
[20] This case involved an attorney who was discharged for expressing her strong opposition to transfer to a different division of the District Attorney’s office to numerous supervisors and for ultimately refusing the transfer. The Respondent also prepared a questionnaire that she distributed to co-workers soliciting their opinions on a number of office issues including the transfer. Connick, 461 U.S. at 140.
[21] Pickering, 391 U.S. at 574.
[22] “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 569.
[23] Connick, 461 U.S. at 146.
[24] Id.
[25] Id. at 147.
[26] Id. at 152.
[27] See V.A. Code Ann. §2.1-804-806 (Mickie Supp. 1998).
[28] Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. 1998). Available at http://www.law.emory.edu/4circuit/feb99/981481.
[29] Id.
[30] Id.
[31] Id. This case was reheard en banc on June 23, 2000. The court upheld the ban on accessing sexually explicit sites by State employees using State equipment by an 11 to 1 vote. The majority, concurring, and dissenting opinions are available at http://www.law.emory.edu/4circuit/june2000/981481.p.html.
[32] Minn. Stat. §363 et seq.
[33] Race, color, creed, national origin, religion, sex, age, disability, sexual orientation, status with regard to public assistance, membership or activity in a local human rights commission, and marital status. Minn. Stat. §363.03, subd.1 (2).
[34] See generally Minn. Stat. §§43A.19 et seq. and 43A.191 et seq.
[35] “Hate” Internet sites may also implicate First Amendment free speech issues similar to those discussed earlier.
