Thanks to Lynne Curry for quoting me in her 9/29/14 Alaska Dispatch News article concerning employee loyalty & privacy. Also, thanks to Econtent Magazine for quoting me in their 9/24/14 article about electronic wearables & workplace policies. Both articles are below & my comments are in blue.
Q: When I returned from lunch last week, my manager stopped me from going to my office and ordered me into the conference room. When I asked, “What’s up?” he refused to answer, but instead brought in the human resources manager. Together they interrogated me, asking me questions that led me to realize they’d looked through my personal iPad.
I asked point blank if they had looked at my iPad and they said they weren’t answering questions, but were asking them. They said since my iPad was at work in my office, I apparently used it during the workday. I said this was an assumption, that I preferred not to leave it in my car and had full right to use it on my lunch hour. They said since I’m exempt, my lunch hour could be considered work time.
I refused to answer any other questions without an attorney present. They told me that was grounds for insubordination and placed me on indefinite, unpaid administrative leave.
When I tried to go back to my office to get my iPad, they told me I couldn’t. I insisted on taking my iPad with me as it was my property, and they gave it to me, but took my cell, keys and deleted my computer access. I’ve since learned they’ve also interviewed my coworkers and asked many disparaging questions.
I had planned to start my own company because I hadn’t felt well treated and this simply pushed my timetable forward. Could you recommend a good attorney as I plan to sue for computer trespass, privacy invasion and slander and have the last laugh as the money will help fund my new business?
A: Don’t count the money yet — at least not until you tell your attorney whether you’d engaged in planning your business or interacting with potential future clients during work hours.
According to attorney Kimberlee Colbo, “Even without a specific policy, employers can defend against ‘breach of privacy’ claims if they can show a business justification for searching a computer, tablet, desk or anything in an office.
“Your employer presumably received information that led them to search your office and electronics. If employees want to ensure their employers don’t review anything on their personal cellphone, tablet or laptop, they shouldn’t bring them to work nor use them for work-related reasons.”
Larry Sitton sued his former employer for privacy invasion and computer theft and trespass when his former manager printed emails off his personal laptop. His employer countersued for breach of the duty of loyalty.
Sitton lost at trial and paid his former employer more than $39,000 in damages. According to the court, the former employer was within its rights to investigate potential improper employee behavior even though Sitton’s manager printed emails off his personal laptop.
According to another court ruling, even small amounts of employee time can violate an employee’s duty of loyalty to the company. When Cameco Inc. fired a manager for not doing all parts of his job, it learned he had a home business on which he spent 15 minutes each workday. According to the New Jersey Supreme Court, the manager’s actions amounted to a breach of the duty of loyalty.
Breaching this loyalty duty can result in high damages. When Mario Industries of Virginia Inc. sued its former manager and sales representatives for breaching their duty of loyalty, it won $1.5 million in compensatory damages and $56,700 in punitive damages.
Although the manager deleted emails, spreadsheets and files before he left Mario’s premises, a forensic computer expert recovered the material and also found the manager encouraged two contractual sales representatives to send business to his new company.
Finally, your actions can crash your new company.
“Based on this employee’s statements,” said attorney Charles Krugel, “he was up to something that undermined his employer. He has jeopardized his reputation. Those who know of his behavior should think twice about employing him, becoming his customer or even working for him.”
Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her atlynne@thegrowthcompany.com [2]. You can follow Lynne on Twitter @lynnecurry10 [3] or through www.workplacecoachblog.com [4].
From Google Glass to the Apple Watch: Wearables in the Workplace
Lin Pophal
Sep 24, 2014
First fax machines, then email, then smartphones and now “wearables”–a new technological breakthrough that, depending on who you talk to, offers both peril and potential. Some perils: wearables allow employees the ability to easily, quickly and covertly record images and data, which may include confidential information, trade secrets or other potentially damaging information. Wearables also, technically, allow the ability to monitor others’ location and physical status, which raises privacy concerns. Add these concerns to issues related to the National Labor Relations Act, and employers are understandably reeling from the potential risk.
However, notes Heather Sussman, co-chair of the Global Privacy and Data Protection group at McDermott Will & Emery LLP, in Boston, there may be some significant benefits as well. Wearable devices–the recently released Apple Watch and Google Glass arguably most well-known among them–provide benefits to both employees and employers, says Sussman. Employees appreciate the ability to use their devices for both work and personal needs, and employers, she says, can benefit from a business perspective. “We’re going to see more and more employers figuring out how these wearable technologies can help to both improve the workplace and facilitate productivity,” she predicts.
For instance, she says, “There are some great examples out there about how there is the potential for wearable technology to monitor fatigue or other safety signals in safety-sensitive positions, which has the potential to reduce accidents and improve safety.”
What Are Wearables?
A wearable is a technological device that can be worn rather than carried, like the upcoming Apple Watch. The functionality of these devices is largely similar to what we’ve come to expect from smartphones, including the ability to record information through camera and video images. In addition, emerging applications allow aspects of the wearer’s own behaviors or biology to be tracked and monitored-location, distance traveled, heart rate, blood pressure and conceivably, much, much more.
All of these functions, of course, present both opportunity and risk for employees and employers. Legal experts say the key is to take a practical approach to both the use of such devices and the risk related to this use.
Practical Considerations – More “The Same” Than “New and Different”
Like many technology-related considerations, there can be a tendency to over-dramatize or overthink the implications of the technological impacts. In fact, legal experts say the considerations are really more of the same than extremely new and different. The same principles and policies apply-they just apply to new technology.
Charles Krugel is a human resources attorney and counselor in private practice in Chicago. Krugel says: “I encourage my clients to take a somewhat liberal approach to e-media policies and practices.” This is for a couple of reasons, he says:
- Government agencies like the EEOC and NLRB, as well as laws like the Stored Communications Act, make it difficult for employers to be extremely restrictive in regulating the content and ownership of workplace communications
- It’s bad human resources management for employers to be overly restrictive in the censorship of workplace communications
But, on the other hand, says Krugel: “Employers have an absolute right to ensure that their workplace is free from illegal and unprofessional behavior whether it’s in the form of electronic communications or body language, and to ensure that their employees aren’t violating intellectual property rights such as trademarks, copyrights and patents.” Therefore, he notes, reasonable restrictions on the use of wearables to gather legally protected information can be enforced in the workplace.
The key, says Sussman, is common sense. Sussman points out that employers have to think about wearables “in the same paradigm as the traditional workplace laws and privacy laws.”
- Is there a legitimate business reason to use the technology?
- Have you put employees on notice about the ways you’re applying technology and that its uses can’t be used for, and won’t be used for, discriminatory or other unlawful purposes?
“That’s the way to look at it,” she says.
The Big Bucket of Risk
Still, there are legitimate concerns, particularly for content providers, that come into play and must be effectively managed, says Josh Druckerman, an associate with White Harris PLLC, a New York employment law firm.
“Perhaps the largest legal risk presented by Google Glass is the fact that it can surreptitiously record video and audio,” says Druckerman. “This creates a whole host of legal risks, including potential hostile environment or sexual harassment claims, violations of state privacy laws or even workplace discrimination suits.” The recording capability of Google Glass means that it can be an “excellent tool for corporate espionage,” says Druckerman.
Consequently, he recommends that companies:
- Look into instituting policies regarding the use of devices that have cameras when entering sensitive areas or viewing sensitive information and training personnel to identify and act to prevent such potential security leaks.
- Ensure that security personnel, employees and management are able to recognize such devices.
- Consider instituting policies that require visitors to leave cameras, smartphones, Google Glass and other recording-capable devices with security personnel before entering sensitive areas.
“In addition to having effective technology use policies,” says Druckerman, “HR needs to have an understanding of the capabilities of wearable devices, as well as what risks they present. This means that it is important to educate and train managers and HR professionals to identify potential technology issues before they can cause problems.”
Education is key, he says. “Employees must understand what is expected and required of them, the risks they create for the company and the consequences of security breaches and harassment.” Again, focus on how the implications of these devices represent “more of the same” rather than a significant departure from issues already being addressed.
Wearables aren’t going away any time soon. The opportunity and challenge for employers in all industries is to consider not only the benefit wearables can provide from a business perspective but also the inherent risks that technology increasingly represents.
(Image courtesy of Shutterstock.)
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