Cybertraps for HR.

Don't let the transmission of bits of data bite you in court.

Technology is dramatically changing the relationship between employer and employee. Most businesses now have (or soon will have) intranets. Further, employee access to the Internet is now the rule, rather than the exception.

This article discusses some of the more salient legal and employee relations issues employers may confront as their workplaces become more electronic. Because the law is largely undeveloped in this area, on some points this article attempts to anticipate the law, rather than describe it.

Recruiting

In the midst of today's labor shortage, many companies are turning to the Internet for recruiting. While Internet recruiting offers many advantages, it can present business and legal risks when it becomes a company's sole or primary means for attracting new talent.

The problem: Not everyone has equal access to, or use of, the Internet. Studies show that African Americans and Hispanics are less likely to have regular access to the Internet. Further, while the gap is narrowing, women are less likely to use the Internet than are men; older employees are less likely than are younger employees.

From a business perspective, it's in an employer's self interest to tap the talent that exists in our diverse communities. Employers that limit their access to diverse communities of workers limit themselves.

From a legal perspective, plaintiffs' lawyers may argue that an employer's sole or primary reliance on the Internet shows an intent to limit the diversity of its applicant pool. At a minimum, it is a factor that a judge or jury might consider.

Finally, exclusive or primary use of the Internet could be particularly problematic for affirmative action employers. These employers must seek to employ and advance qualified women and minorities in accordance with their affirmative action plans.

These plans contain statistical goals (not quotas) based on the percentage of qualified employees in the geographic area in which the employer recruits. The greater the percentage of minorities in the geographic area, the higher the goals.

When employers use the Internet for recruiting, they alter the geographic area in which they recruit. This can have a profound impact on their affirmative action obligations.

For example, say an employer operates in a region in which 10 percent of the applicant pool is African American or Hispanic. In contrast, the employer's workforce is only 3 percent African American or Hispanic.

Through Internet recruiting, the employer raises its percentage of African American and Hispanic employees to 10 percent. But, by using the Internet, the employer has expanded its applicant pool from a local one to a national one. Now the 10 percent statistic is woefully deficient because, on a national level, African Americans and Hispanics account for considerably more than 10 percent of available labor.

Does using the Internet truly mean you have a national labor pool? Yes, according to some investigators for the Office of Federal Contract Compliance Programs (OFCCP). Ironically, such a position could discourage employers from using the Internet to achieve greater workplace diversity. Conversely, it could help some employers escape blame for their failure to meet affirmative action obligations.

Here's an example: An employer recruits in a community where 60 percent of the qualified labor is African American or Hispanic, but only 35 percent of the company's employees are African American or Hispanic. If the employer uses the Internet to tap a national labor pool, its numbers will seem exemplary, rather than deficient, because, on a national scale, the number of African Americans and Hispanics is considerably lower than 35 percent.

It is hoped that OFCCP enforcement activities will recognize that there is a significant difference between using the Internet to increase diversity and using the Internet to justify the absence of adequate diversity.

Solicitation and Distribution

Most employers have (or should have) policies that regulate solicitation and distribution by employees and non-employees. If communicated clearly and applied consistently, these rules can limit union-related solicitations and distributions.

Generally speaking, employers can do the following:

* Restrict employee solicitation to the non-working time of all employees involved.

* Restrict employees to distributing in non-working areas during the non-working time of all involved. (Stricter prohibitions are permitted in certain circumstances. For example, in the health care industry, employee solicitation and distribution generally can be restricted to non-working, non-patient care areas during the non-working time of all involved.)

* Prohibit non-employees from soliciting or distributing on company premises, regardless of the cause.

How do these rules apply to email? Is e-mail a solicitation, a dis-tribution or neither?

A good argument can be made that e-mail is neither a solicitation nor a distribution. Rather, it can be argued that e-mail is more akin to a company bulletin board: property that is owned by the employer and that the employer can control, so long as the control is not applied in a discriminatory way.

More specifically, an employer has the right to preclude employees from posting messages on its bulletin boards. However, if the employer allows employees to post personal messages, it cannot discriminatorily prohibit union-related messages.

The same should be true for email. An employer should be able to prohibit any non-work-related solicitations. While the employer can make exceptions, it can't apply the prohibition strictly to union-related solicitations.

The National Labor Relations Board (NIRB) has not yet ruled on this issue. Accordingly, employers may wish to take the position in their policies that solicitations of any kind on their e-mail systems are prohibited.

It is possible, however, that the NLRB may come out the other way. Indeed, the Office of the General Counsel has taken the position that employers cannot prohibit use of their e-mail systems, but rather only can restrict such use to non-working time.

However, this position is not binding on employers. Further, it is inconsistent with NLRB precedent, if the NLRB applies case law faithfully.

Remember, such prohibitions do not preclude employees from soliciting or distributing on behalf of unions in the workplace; they only prohibit them from using company resources to do so.

Employee Handbooks

Some employers are putting most or all of their employment policies--including their handbooks--on their intranets. Doing so allows employers to make changes more easily and cut down on wasted paper. However, it may be legally prudent to continue to use tried-and-true paper distributions for some items.

One item that should perhaps remain in paper form is the employee handbook "disclaimer," which clearly states that the handbook is nor a contract, that employment is at-will and that the employer reserves the right to modify, discontinue, change, etc., its policies, benefits and rules.

When handbooks include a disclaimer that is both clear and conspicuous, employees will have a difficult time claiming they believed the handbook was a contract. The problem is, if the handbook is on the intranet, the disclaimer may not be conspicuous.

It is possible to set up the intranet so the disclaimer is the first page employees see the first time they access the handbook online. To get to a particular policy or procedure, employees would be required to click a box signifying that they read and understood the disclaimer. For further protection, you can make sure the disclaimer pops up periodically, say every six months.

In an ideal world, this should be enough. In the real world, employees may successfully argue that they accidentally clicked the box and didn't know what they were doing. So, while it is not legally mandated, it may be wisest to print out the disclaimer and keep a written receipt in employee personnel files acknowledging that they understood the disclaimer. This removes any reasonable claim that employees did not see the disclaimer.

EEO Policies

For similar reasons, it is recommended that employers give each employee a hard copy of their EEO policy and complaint procedures, in addition to making the policy available online.

As we all know, the key to avoiding legal liability for harassment is prevention and correction. Under case law of the U.S. Supreme Court, if an employee files a lawsuit without first using the company's internal complaint procedures, the employer may be able to have the case dismissed. However, to do so, the employer would have to prove that the employee's failure to use the company complaint procedure was unreasonable.

As a result, employers should consider all the reasons why employees might not use internal complaint procedures--and then work to eliminate those reasons.

If the policy and complaint procedures are available only on the company's intranet, employees could claim they couldn't find them. (While the argument may not succeed, it would probably add to the time and expense of litigation.) Or employees could claim they were afraid to access the policy online because they feared the company might be able to monitor the fact that they accessed it.

For similar reasons, it is recommended that employees receive a hard copy of the company's Family and Medical Leave Act (FMLA) policy. Here, too, liability often hinges on the clarity of the communication between the parties.

Hostile Working Environment

Employers should make it clear that their non-harassment policies apply equally to e-mail communications and Internet searches. In the discovery process, it is now common for plaintiffs' lawyers to request copies of e-mail messages sent to or received by alleged wrongdoers. Email that includes inappropriate messages may tarnish the credibility of accused managers and employees in court. (Remember that e-mails often are stored on tape backups long after they are deleted; so months' worth of e-mail messages may be available for a plaintiff's attorneys to review.)

Jokes that are sexist, sexually suggestive, racist or otherwise discriminatory in nature are inappropriate in general--and especially so in the workplace--and should not be relayed via any means, including email. While this is obvious to most HR professionals, what is not obvious is that, in the eyes of the law, forwarding a joke is virtually the same as telling it. Employees often forward jokes they would never dream of saying out loud without realizing that, legally, they might as well be uttering the words themselves.

Equally problematic is the visiting of sexual or other inappropriate web sites. If others see these web sites on computer screens in the office, they may feel uncomfortable at a minimum, harassed at worst.

But even if web sites are viewed in absolute privacy, there still may be a problem. Employees' web prints remain long after they exit a web site and may be used to weaken your company's position in a trial. For example, assume that one of your managers is accused of sexual harassment. If she has left behind a trail of sexual web sites she visited during office hours, her credibility may be damaged beyond repair in the eyes of a jury or judge.

These issues should be addressed in the employer's policies, as well as in training. The goal is not to catch employees but to avoid the problems altogether. Employees should be taught that, when it comes to e-mail, delete doesn't mean delete; when it comes to Internet searches, employees leave a part of themselves behind.

Searches

As the preceding discussion makes clear, employers should establish limitations with regard to employee use of e-mail and the Internet. Further, employers may wish to consider monitoring employee compliance with these restrictions.

The utility of employer monitoring is not limited to deterring and catching employees who engage in cybersex or tell inappropriate jokes while at work. The monitoring could help to detect illegal behaviors, such as loansharking, or behaviors detrimental to the business, such as disclosing confidential business information.

This leads to an obvious question: Does the employer have a right to search through employee files and data? The answer is probably "yes," provided certain conditions are met.

Generally speaking, employees have common law privacy rights in the workplace. The question is whether the employee has a "reasonable expectation of privacy." By their conduct, employers determine whether an expectation is reasonable.

If an employer tells employees that the messages they send, store or receive on company e-mail are not private and may be monitored, the employee should not have a reasonable expectation of privacy. Similarly, if an employer tells employees that Internet searches made via the company web server are not private and may be monitored, then employees should not have a reasonable expectation of privacy.

However, this issue can get complicated because monitoring e-mail messages and Internet activities may be subject to the federal Electronic Communications Privacy Act (ECPA) and many state wiretap laws. In some cases, the state laws are more restrictive than the federal law.

There is not a lot of case law under the ECPA dealing with an employer's right to monitor e-mail messages or Internet activities. What scant case law there is suggests that employers probably have such a right, provided that certain terms and conditions are met:

Interception. Generally, there can be liability under federal or state wiretap laws only if there is an "interception." Generally, a communication can be intercepted only if it is monitored at the time of its occurrence or transmission.

Accordingly, e-mail messages should not be monitored while they are being created or sent; they should be monitored only after they have been transmitted and while they are in storage.

Similarly, Internet activities should not be monitored while they are occurring. Employers should determine where employees have been, not where they currently are.

Consent. Even if there is an interception, employers generally can avoid liability if those being monitored consent to the interception. Under federal law, only one party to the communication must consent to the interception; under some state laws, the consent of all involved parties is required.

Consent can be expressed or implied. While expressed consent is obviously preferable from a legal standpoint, relational and operational considerations may argue in favor of implied consent.

To obtain implied consent, your policies should make it clear that by using the company's e-mail and Internet systems, employees consent to be monitored. As noted above, however, in some states, the consent of all parties is required. Obtaining consent from non-employees who communicate with employees is more difficult because non-employees obviously don't receive company employment policies.

The problem can be mitigated with regard to e-mail communications. It is possible to provide notice to non-employees who send messages to employees that their messages are subject to search.

However, this kind of notice may have adverse business consequences. Further, it can be complicated and cumbersome to ensure that the notice is provided before the non-employee's message is transmitted.

The problem is even more difficult to overcome with regard to Internet communications in chat rooms. There is no practical way for employers to provide notice to non-employees that their conversations with employees may be monitored. Because obtaining informed consent of non-employees may be impractical with regard to either e-mail or Internet searches, it is preferable for employers to avoid the need for such consent by avoiding the interception in the first place.

Need to know only. The ECPA was modeled after the federal wiretap laws. A number of cases deal with the monitoring of telephone calls under these laws. In general, case law suggests that employers must cease monitoring a telephone call once they discover that an employee is using the telephone contrary to company policy.

Because the ECPA was modeled after the federal wiretap laws, it is possible that the courts will apply the case law of telephone monitoring to e-mail and Internet monitoring. Accordingly, it is recommended that employers review e-mail messages and/or Internet activities only to the extent necessary to protect a legitimate employer interest.

For example, once an employer discovers that an employee is having cybersex, the employer should cease monitoring. The employer does not need to know the specifics of the conversation.

Conversely, assume the employer discovers that an employee is disclosing confidential business information. Because the employer would need to know what information the employee is disclosing, it should have the right to monitor more extensively.

Training

If we want employees to speak electronically, we need to teach them how. Of course, the law doesn't mandate that we provide training; the law permits organizations to self-destruct.

But the law does regulate whether you pay employees for the time they spend in training. Legal and labor issues also may be involved in terms of how much training is offered.

Under the FLSA, non-exempt employees must be paid for their training, unless all of the following four conditions are satisfied:

* Attendance is outside of the employee's regular working hours. (This exception can be found in 29 CFR 785.27. Also see 29 CFR 785.31 for an additional after-hours training exception.)

* Attendance is voluntary.

* The course, lecture or meeting is not directly related to the employee's (current) job.

* The employee does not perform any productive work during the training program.

For employee relations reasons, most employers will offer training, at least initially, during working hours. If so, the training is compensable.

For some employees, additional training may be necessary. After all, most pre-boomers and boomers did not grow up playing computer games. In addition, adults age 30 and older generally have less experience with new technologies and a slower learning curve.

As a result, your initial training program should probably be based on an adult learning curve. It is also recommended that additional training be offered to those employees who are having trouble. Employers who operate contrary to these recommendations run a number of major risks:

* Employers may be able to terminate employees who, after receiving only a modest amount of training, are not technologically competent. However, with the existing labor shortage, which will get worse before it gets better, employers may not be able to find qualified replacements for the terminated employees.

* If a disproportionate number of employees who fail to use new technologies are older, age claims may follow. The older employers may argue that the employer provided only minimal training, which ensured their failure. Further, even if the termination of an older worker does not relate to technology, the large number of older workers who have been let go may consciously or unconsciously influence the jury's perception of the employer's treatment of older workers.

* The fear of becoming obsolete is a catalyst for union-organizing activities. Employers need to provide sufficient employee training so that the anxiety associated with technological change is reduced. If employers don't make training their issue, a union may.

Where an employer offers additional training to those having trouble, the question becomes whether the additional training is compensable. If employees participate in supplemental training during the workday, the training is compensable, even if it is optional.

The only way to avoid paying for extra training is to offer IT after employees' regular working hours. Of course, these cost savings need to be balanced against countervailing considerations of employee relations.

Conclusion

One of the most common complaints by employees is the absence of adequate communication. Electronic communication can help bridge this perceived gap, but it raises a host of novel legal issues. Fortunately, you can minimize these risks with proper planning and precautions.

Author's note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., is a partner in the Employment Services Group of Wolf, Block, Schorr and SolisCohen LLP, a Philadelphia-based law firm. His practice concentrates on counseling clients, developing policies and strategic plans and training managers to avoid litigation and unionization.