SimplyHR | Employment & Labor Blog 

Undoubtedly, nearly every employer that provides Internet access to employees loses some appreciable measure of productivity to employee activities such as checking a Facebook account or updating a fantasy football lineup. Is maintaining an online extra-marital affair using a company email account more onerous than using company time to prepare for one’s fantasy baseball draft? The answer likely lies within the specifics of the company’s policies governing the activities in question.

Revisit and remind

Employers should regularly review Internet, email and computer use policies to make sure they are clear and up to date. Employers must ensure that their policies clearly communicate the conduct deemed acceptable and unacceptable. Additionally, these policies should clearly notify employees that computer and Internet use may be monitored and that employees have no expectation of privacy in their use of company devices or email accounts. Employees should be reminded of these policies, including through occasional redistribution or training. Also consider blocking access to certain websites or categories of websites on company computers and connections.

The Ashley Madison data hack raises another interesting legal issue: Can an employer take action against an employee for off-duty conduct the employer finds inappropriate or immoral? While many employees are considered “at-will” employees who can generally be terminated with or without a specific reason, several states have enacted laws prohibiting employers from taking adverse action against employees for otherwise lawful off-duty conduct. Of course, in some circumstances, the employee’s conduct may damage the employer’s reputation or violate behavior expectations (e.g., an employer affiliated with a religious organization may expect its employees to follow its religious tenets). It is also important to check any applicable employment agreements or collective bargaining agreements, review applicable local, state and federal privacy and employment laws, and ensure that any relevant company policies and procedures are followed. It is also advisable to conduct a thorough investigation before taking any action against the employee.

If you have questions regarding how to draft or enforce computer use, Internet or email policies or regarding your investigation and disciplinary practices, please contact the attorneys in our Employment & Labor Group.