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This Never Gets Old: Addressing Technology in the Workplace – Tips for Employers

The ever-expanding world of technology simplifies and streamlines how we do business and, at the same time, makes it more complicated, too. In the employment context, it gives employees greater freedom to work from home, perform tasks more efficiently and share information at the click of a mouse. Unfortunately, it also gives them more opportunities to access and misappropriate confidential information, waste company time and, in the most extreme cases, break the law from the comfort of their own cubicles. This article provides some tips for employers in Indiana and Kentucky to create policies and practices to minimize technology-related problems.

Address issues BEFORE they arise

To illustrate the problems that technology can create in the workplace, we often receive questions from clients that start like this: “I think my employee is using our computers inappropriately while he is at work…” or, “We terminated an employee who may still have company information on her home computer or handheld device…” Generally, our first question is to ask what the employer has done to anticipate such a situation. We might ask:

  • What does your handbook say on the topic?

All employers should consider creating written policies and procedures that govern the use of technology in the workplace. The provisions of such policies can range from prohibiting employees from using personal cell phones in the office or while on company time to reminding employees that computers, phones, fax machines and all other equipment in the office belong to the employer. Some employers’ policies notify employees that the employer retains the right to inspect any and all devices (including personal devices) used in the workplace, but this should be reviewed by legal counsel for compliance with federal and state law. Some employers seek to monitor work email addresses and telephone use and require employees to obtain permission before posting work-related information on any website or social media site. These practices have been challenged by the National Labor Relations Board as illegal, even in non-unionized work places. Policies concerning social media use must be crafted carefully. In short, technology-use policies should be specifically tailored to fit each unique workplace and legal jurisdiction.

  • Does the employee have an employment agreement?

Employers can require employees who have access to confidential, trade secret, or proprietary information to execute employment agreements that contain non-compete provisions and other terms that restrict the employee’s use of company information. Such agreements must be reasonable in scope, time and geographical limitations. Prudent employers should seek employment counsel for assistance in drafting such agreements. An employment agreement can help support legal action against an employee who misappropriates company information.

  • What is your action plan for departing employees?

When you know in advance that an employee is going to be terminated or is resigning, take steps before the termination of employment to ensure that he or she will not take any company materials. This might include de-authorizing devices and shutting down access prior to or during a termination notification. This might also include requiring the exiting employee to leave the building without returning to his or her desk (except with an escort to retrieve coats, keys and purses). You can also ask the employee to return at a later time to gather other personal items. When an employee leaves without much notice, it may be prudent to conduct an electronic audit of the company’s equipment and devices after they are returned to search for any improper activities. Again, care must be taken to avoid claims arising from taking this action depending on the context and location of the employer’s operations. An audit may alert you if the employee has copied, transmitted or printed company documents and indicate whether the employee has been contacting customers inappropriately. You can then take steps to retrieve the information and mitigate any harm from the employee’s conduct.

Exercise your rights

Once these questions have been answered and an employer has taken steps to prevent and mitigate technology-related problems, the final step may be to consider initiating litigation to force the return of company property or prohibit the employee from taking steps that will hurt your business. Pursuing litigation against an offender can prevent the offender from proceeding further (and in some cases, obtain compensation for the company for any damages incurred), but also can deter others from using technology in the workplace for improper purposes.

An employment attorney can help you evaluate the pros and cons of any of these measures and, if necessary, help you put them into practice with minimal risk of liability. If you have questions about how this may impact you or your business, please contact a member of our Labor and Employment Practice Group.

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