
The federal court’s ruling is full of intricacies about
electronic communication laws, but I believe the primary take-away from the
case is that company managers need to exercise better judgment and avoid
creating the type of bad facts that lead to bad law. When I discussed the Lazette ruling with one of my partners
who specializes in privacy issues, he noted: “Tell people not to do stupid
things.” With that in mind, here’s a
list of some smart things that companies can do in connection with technology
to try to avoid legal risks:
1. Be thoughtful about whether you want to
provide employees with a company purchased device or let employees use their
own personal devices for work.
2. If you provide a company-owned device, be
thoughtful about whether you want to let employees use the device for any
personal communications.
3. Whatever devices you let employee use, think ahead
of time about what data may be contained on the device, how you will obtain business
data back if an employee leaves employment, and how you might segregate any
personal employee data that may be on a device from business data.
4. Have carefully drafted written policies or
user agreements in place with employees to protect company data, to ensure that
company data is returned when employees leave employment, and to address when
and how any arguably “private” data of your employees on a device may be accessed.
5. The legal landscape related to technology in
the workplace is unsettled and evolving. Many of the laws being applied by
courts were written long before the technology at issue was developed. As such,
it is smart to tread carefully and to check with legal counsel before accessing
any personal emails or other arguably “private” data of an employee to ensure you
have legal grounds to access the data and that you access the data in a lawful
way.
6. Train your managers on the company’s policies
and practices related to technology. Make sure that managers know that they must
consult with upper management (and possibly the company’s attorney) before
accessing data on an employee’s computer or other technology devices and before
sharing any accessed information with others.
Following these tips and exercising good sense can go a long
way in reducing legal disputes and legal risks related to workplace technology.
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