When X-Tracurricular Activities Become X-Rated
As individual and employer use of the internet grows, this communication medium presents new dilemmas as well as opportunities. Consider these instances:
In Maryland, a superstar salesman was openly groped in the workplace by a female coworker. The company's investigation revealed that the woman's action, while clearly inappropriate, arose from viewing the man's personal website, a pay-for-view site that featured sexually oriented content.
Likewise, two Arizona nurses were fired after their employer hospital discovered the two operated a pornographic web site. The hospital administrators felt that the couple's web site activity contributed to a hostile and offensive environment in the work place. In another case, a government scientist claims that his dismissal was prompted by the agency's disapproval of scientific theories advocated on his personal web site.
Another area of potential concern arises in employee chat lines and "sound-off" web sites that are a forum for employee complaints about their employer or its policies. Some employee complaints have been clearly false, inflammatory, or even defamatory.
These cases demonstrate the continuing tug-o-war between individuals and their employers on matters related to privacy. The individuals in these cases assert that they are merely expressing their First Amendment freedom of speech rights. The employers, on the other hand, are concerned that employee conduct disrupts the workplace or brings discredit to the company.
So, what is an employer to do? What rights do employees have and what should an employer do if this kind of employee conduct is discovered?
These issues are actually part of the a broader question regarding employer regulation of employee conduct off the job. So, even though the Internet element is new, there are some guidelines for dealing with off the job conduct questions. Here are some thoughts.
An employer has a reasonable basis to control employee conduct on the job and to control use of company equipment or communication systems. Likewise, an employees' personal activities off the job are his business. But when the employee's off the job conduct affects the business, the employer generally has a reasonable basis to deal with the issue that affects the workplace.
For example, employers have been able to respond to conduct that affects an employee's ability to perform job duties. If non-work activities impair job performance, the employer can take corrective action regarding poor performance. If non-work activities create a conflict of interest or result in competition with the employer, there is reasonable grounds for preventative or corrective action.
Further, if the employer identifies unauthorized use or display of company name, logo, products or services, the company has a reasonable basis to exercise control. If an employee uses company computers, communications systems, facilities or performs personal activities on company time or premises, the employer has a reasonable basis for taking corrective action. An employee's off the job illegal conduct may be grounds for corrective action particularly where the conduct has a significant job relatedness.
In some areas, state law prohibits employers from taking adverse action against an employee for participation in legal recreational activities off the job. An Illinois law, for example, is more narrowly defined, protecting employees from adverse action due to use of lawful products off the job.
An employers best protection is to define and communicate policies to employees regarding acceptable job conduct. These policies can define guidelines regarding job activities, use of company property, and instructions regarding use of computer and internet systems. Employer policies can also define job related limits to non-work related activity such as secondary employment, conflict of interest, and other activities that may affect the organization. The airlines, for example, prohibit flight crews from consuming alcoholic beverages within a specified time period prior to scheduled flight duty for safety reasons.
Employment and conduct policies can be summarized into an employee manual. Some firms choose to define certain employment terms such as confidentiality, conflict of interest, trade secret protection, and non-compete issues into an employment agreement.
Take care to define policies carefully to protect employment-at-will prerogotives. Seek professional assistance if unsure about proper treatment of sensitive issues.
One of the significant challenges facing human resources specialists these days is achieving a balance between the often conflicting demands of work, family and personal activities.
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William S. Hubbartt is president of Hubbartt & Associates, a St. Charles, IL consulting firm specializing in employee compensation, employee handbooks, personnel policies and supervisory training. (www.Hubbartt.com) Mr. Hubbartt is author of The New Battle Over Workplace Privacy, published by AMACOM Books.
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