A New Year's Resolution: Implement or Update Your Technology Policy

The end of the year is, of course, a time for reflections, predictions, and resolutions for the new year.  As I’ve reflected on the 2011 Modern Workplace blog posts, the primary take-away from most posts is the importance of having a carefully drafted, lawful technology policy.  In addition, the web is currently filled with technology predictions for 2012 that suggest the lightning fast pace of technological developments impacting the workplace will continue in 2012.  Some of the 2012 predictions include touch computing potentially replacing desktops and laptops, more effective voice-controlled or movement-controlled devices, and bendable screens that allow zooming in and out or scrolling by simply twisting your phone or tablet device. These reflections and predictions lead to the conclusion that an important 2012 resolution for employers should be to adopt, or to update, an effective and lawful technology policy customized for the employer’s business and its needs.  While there are many off-the-shelf policies available, such policies often do not fit the practical needs of each unique employer and may not comply with the law that applies to the employer in its various locations and given its size.

While not exhaustive, some items to consider addressing in a technology policy in 2012 include:

• The technology covered by the policy:  Employers should consider whether the policy will extend only to employer-paid or provided devices or whether the employer may lawfully and should extend the policy to personally owned devices used for work purposes.  The law is still evolving in this area, but having a clearly worded policy can improve an employer’s legal position in arguing that it has the right to access technology used by an employee for work purposes.
• Privacy considerations:  A policy should include an express warning that the employer retains the right to monitor and review the use of and content on any technology covered by the policy.  Employers should be aware, however, that there have been court decisions finding employers liable for improperly accessing or using online content, particularly where the content was on a website with restricted privacy settings, such as Facebook.com.  As such, employers should take care to ensure they lawfully access online content, and they should consult with counsel as appropriate to ensure compliance.
• Permissible and impermissible uses:  The policy should explain the permissible and impermissible uses of technology and social media.  Items to address might include, for example, personal use of technology on work time, employees’ obligation not to use technology to engage in unlawful behavior, the need to protect confidential or trade secret information, and the need to respect others’ intellectual property rights.  Employers must also take care, however, not to run afoul of employees’ legal rights.  An employee’s use of technology and online content may be protected by discrimination, anti-retaliation, lawful consumable product, lawful activity, or other laws.  Currently, one area of heightened risk involves increased enforcement activity by the National Labor Relations Board to protect both unionized and non-unionized employees’ rights under federal labor law to engage in “concerted” activity for their mutual aid and protection through online activity. 
• Wage and Hour issues:  Non-exempt employees generally must be paid at least minimum wage for all time worked and overtime pay, which can, depending on the circumstances, include time spent checking voice-mails or e-mails away from work.  As such, an employer may want to address limits on the use of technology by non-exempt employees outside of normal working hours.
• Photography and Recording:  As discussed in a previous post, smart phones make it far easier than in the past for employees to secretly record conversations at work or to take unauthorized photographs or videos.  Depending on the employer’s business and its unique risks, a technology policy might include language prohibiting the use of devices to make recordings or take photographs or videos. 
• Driving:  The National Transportation Safety Board recently recommended making all non-emergency talking, texting, or other use of mobile phones and devices illegal while driving.  While enforcement is sporadic, many states already ban such activity or permit talking only on hand-free devices.  Because employers can be liable for injuries caused in the course and scope of an employee’s duties, employers should consider whether to include such limitations in a technology policy.
• Testimonials:  The Federal Trade Commission has taken the position that false and misleading advertising laws apply to online postings.  Among other things, the FTC requires that employees that offer online endorsements or testimonials of the company’s products or services must disclose their connection to the company.  As such, an employer’s technology policy may need to include language advising employees of the need to comply with FTC requirements when making endorsements or testimonials.
• Consequences:  The policy should advise employees that violations may lead to discipline, up to and including immediate termination of employment.  In enforcing the policy, however, employers need to be mindful of any activities or online content by employees that may be legally protected, as mentioned above.