TECHNOLOGY ISSUES AFFECTING EMPLOYERS

May 2004

Rapid technological advances not only effect our daily lives, but also have an impact on workplace issues. Ever-changing technology requires that employers update their practices and policies accordingly.  The following are a few examples of recent technological changes that have an impact on employers: 

Camera/Internet Accessible Phones in the Workplace 

Mobile phones can now be utilized for email, internet usage, and most recently, as cameras.  Employers should consider the potential wrongful use of camera phones, such as photographing employer trade secrets and proprietary information, and invading the privacy of other employees.  Employers can institute either a total ban of camera phones or restrict when and where they are used.  In cases of restricting use, it is advisable that the policy  be very specific to place employees on notice as to what conduct and activity is acceptable and which is prohibited.  The use of camera phones by third parties (vendors, customers, visitors) should also be regulated to avoid wrongful use. 

Likewise, employers may wish to restrict employees from utilizing phones (or other handheld devices) for accessing the internet for personal use during business hours.  Such use should be restricted to non-work time (lunch or breaks) to avoid work disruptions and lost productivity. Also, harassment and discrimination policies should prohibit employees from using internet phones, PDA’s, etc. to send or receive offensive or harassing messages/images while on company time or premises.

 Definition of “Job Applicant” for On-Line Job Searches Clarified 

Many employers now utilize the internet to advertise and recruit new employees.  As a result, employers receive resumes or applications on-line, sometimes unsolicited and not in response to a specific ad.  Last month, the Equal Employment Opportunity Commission (EEOC), Department of Labor (DOL) and the Office or Personnel Management (OPM) issued proposed guidelines for the definition of an “applicant” for record keeping purposes.   

With respect to internet applications, an individual will be considered an “applicant”, where the following three actions take place:  1) The employer must have taken action to fill a particular position, i.e., placed an ad for a specific position; 2) The proposed applicant must have followed the employer’s stated application process for applying for the job; and 3) The proposed applicant must have expressed an interest in that particular position.  Under this definition, persons who submit broad based resumes (one asking for any open position) or unsolicited applications would not qualify as an “applicant”, and an employer is not required to keep records of this submission under current EEOC or DOL guidelines. 

Illegal Music Downloads by Employees at Work 

Recent laws regarding illegal downloading of music from the internet have resulted in multiple arrests and prosecutions for violations of music copyright laws.  Employers must be aware that this may be happening in the workplace, and depending on an employer’s  actions to prevent it, it may be liable for its employees’ illegal actions.  Employers may be held liable if the company is benefiting from the illegal download, even if the employer is unaware of the illegal activity.  This would include background music used in your radio advertisement or training video, or the music playing over your work PA system.  Employers may also be held liable if music (or video) was downloaded using company equipment, computer access, etc., for an employee’s personal use but with the knowledge of the employer. 

Employers with internet access and download capabilities should establish policies prohibiting, at a minimum, illegal downloads.  Employers should also make reasonable efforts to monitor computer use and downloads to ensure that the policy is being followed.  Strict enforcement of the policy is important to avoiding liability for an employee’s illegal actions. The employer’s policy must indicate that employees have no expectation of privacy regarding the use of the internet at work.