Shawe Rosenthal - Management's Workplace Lawyers

HIGHLIGHTS FOR THE MONTH OF FEBRUARY 2004

EMPLOYMENT LAW ALLIANCE POLL: FREQUENCY OF SEXUALLY EXPLICIT/ ROMANTIC COMPUTING IN THE WORKPLACE EXAMINED

In the spirit of Valentine’s Day, the Employment Law Alliance, an international employment and labor law group of which Shawe & Rosenthal is the Maryland member, conducted a survey of 826 employees from more than 800 companies across the Country on the level of “sexually explicit computing” in the workplace.

The results of the survey revealed:

• 24% of the employees surveyed indicated that they were somehow involved in the use of a company computer for sexual and/or romantic purposes
• 12% said that either they or a co-worker accessed sexually explicit websites from a workplace computer.
• 12% admitted that they have forwarded or received forwarded sexually explicit email content with their co-workers while at work
• 6% reported that a co-worker or they have engaged in sexually explicit online chats and/or instant messaging during work hours
• 10% said a co-worker or they have used the office computer for online dating services.

When these employees were asked whether they felt the use of company computers for personal romantic purposes had a negative impact on worker productivity, 42% indicated that it did. It is clear that this type of conduct raises serious productivity issues in terms of wasted employees' work time and company resources.

Additionally, this type of conduct may open an employer up to potential liability with respect to harassment claims, which raises the question as to what are employers doing to police and prevent these inappropriate workplace behaviors. Of the individuals polled, 37% said that their employers have implemented policies prohibiting romantic relationships between supervisors and subordinates. Many employers have also implemented e-mail, voice-mail and internet policies restricting the employees' use for business purposes only.

CREATING E-MAIL, VOICEMAIL AND INTERNET POLICIES

E-mail, voicemail and the Internet facilitate productive communications between employees, customer and other third parties. As the poll demonstrates, employees also use e-mail, voicemail and Internet systems for all types of communications having nothing to do with the employer's business. Some uses which are not related to the business can also form the basis for a claim of harassment.

Below, we have outlined key points to consider when drafting policies regarding the maintenance and use of e-mail, voicemail and the Internet in the workplace. It is important to stress that this is not a "one size fits all" proposition. Each employer is likely to have issues unique to it, and its policy should reflect those differences.

E-mail and Voicemail Messages and Internet Usage

The following are considerations for creating a sound Internet, e-mail and voicemail policy:

• Include a statement that e-mail, voicemail and Internet tools are company owned and a statement of the purpose for which the item is to be used (business, personal, confidential, etc.)
• Include a statement dispelling any expectation of privacy
• Retain the right to access and investigate the systems and any saved materials
• Explain what will be subject to monitoring and how monitoring will be conducted
• Ensure employees understand that they are responsible for what they view and download and for what they transmit and otherwise communicate via e-mail, voicemail or the Internet.
• Address the importance of not using the e-mail, voicemail or Internet system to disseminate materials that are offensive or derogatory to another's sex, race, religion or other protected characteristic.
• Tell employees to respect copyrights and restrictions that pertain to outside materials and that prohibit unauthorized downloading of software. • Include a statement of penalties for policy violation
• Cross reference to record retention policies
• Explain password procedures
• Explain when encryption procedures must be implemented
• Explain confidentiality issues with regard to creating, forwarding and replying to communications
• Confirm that the employee has read and understands the policy

As a reminder, the monitoring of personal/business communications should be done by lawful means with the express knowledge and the consent of the employee. Information obtained as a result of monitoring/information collection policies should not be used for purposes beyond those identified in Company policies, without the consent of the employee, unless required by law. The following considerations should be addressed:

• Who will secure the information?
• How will those individuals be trained with regard to the potential legal implications of their actions?
• How will the information be physically retained?
• Who will have access to the information that is retained?

If you would like our assistance in drafting an e-mail, voicemail and Internet policy for your organization, please do not hesitate to contact us.

HARASSMENT BASED ON PROTECTED CHARACTERISTICS

As the above poll demonstrates, improper use of email, voicemail and the Internet can result in potential liability for the employer including complaints of harassment. Below we have provided tips for managers in dealing with a harassment complaint.

The Human Resources Department should be involved early in any situation that appears to raise a harassment issue.

Harassing Behavior

Kissing, groping, sexual propositions or comments, and pornography are easily understood as sexually harassing conduct. Other behaviors, however, are not so clear-cut as being harassment. Some examples of behavior that could be viewed as harassment:

• Making comments about a person’s appearance (other than general compliments of a social nature)

• Hugging, patting, or rubbing someone’s shoulders/back

• Using nicknames or pet names (for example, sweetie, honey, dear)

• Name-calling (for example, bitch, bastard, son of a bitch, ethnic/racial slurs)

• Telling jokes of a sexual (or racial or religious) nature

• Asking repeatedly for dates

• Viewing Internet sites with sexual/sexist/racist content at work

• Sending e-mail messages with sexist/racist content

• Staring or leering or making suggestive gestures

• Keeping material of a sexual nature, racially hostile nature, etc. in the workplace (for example, a centerfold or “white power” poster inside a locker door)

What to Do

• You can find out about harassment in several different ways: a direct complaint, gossip and rumor, or seeing/hearing it yourself. Regardless of how you find out, you should take action.

• Many times, the alleged target of the conduct may say, “I don’t want you to do anything,” or “I don’t want to get X in trouble.” As a member of Company management, you cannot simply “do nothing.”

• Take immediate action. Do not wait to see if the situation resolves itself.

• Make sure that HR is notified and involved as soon as possible.

• Do not retaliate against the person making the complaint or the employees involved in the investigation.

• Minimize contact between the accused and the complaining party after the complaint is made and the investigation is ongoing. Change work schedules, offer paid leave, transfer one of the parties – but make sure, no matter what you do, that the complainant is NOT treated in a less desirable manner than the accused. The complainant should agree to a transfer or change in work schedule, if he/she is the one being transferred/shifted.

• Do not promise confidentiality. You can inform the employees involved that the Company will be as discreet as possible, but that sometimes it is necessary to share information with others in order to get the full story from both sides. Keep in touch with the complainant.

For greater clarification of any of these issues, you may contact any Shawe & Rosenthal attorney.

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