The rights of employers and employees in the workplace are often determined by the terms contained in employment contracts. This is so in relation to the issue of personal Web use in the workplace. As between employer and employee, the regulation of personal Web use is largely determined by the contract of employment or whatever industry agreements exist.
However, in determining the terms of such contracts, organizational Internet policies are key, since written employment contracts do not usually make specific reference to monitoring of personal Web use. Rather, organizational
rules regarding employee Internet use are usually stated in corporate policy manuals. The consequence of this is that rules governing employee Internet use
may or may not form part of an employment contract, depending on the manner in which such rules are drafted and the language used therein.
An organization’s policy on Internet use forms the nexus between employment
and privacy law. The status of enterprise policies regarding Internet use is well established: an employer’s policy regarding Web use is usually binding.
There have been numerous cases where an organization’s employment policies
have been held to form part of the terms of an employee’s employment contract.Consequently, the terms of a policy may bind the parties to the contract, i.e., both the employer and the employee.This is important in relation to lawsuits that may be brought by disgruntled employees: a breach of
organizational policy will often go a long way in proving that an employer is not
guilty of alleged misconduct.
This section examines the importance of giving “notice” to employees of an organization’s Internet policy, outlines the content that should be included in a
policy to reduce employer exposure to various types of liability, and discusses
the legal importance of enforcement of Internet use policies.
Enforceability and Notice
For an Internet use policy to apply to an employee or to form part of an employment contract, “notice” must be given of the policy. This means that the terms of the policy are communicated to an employee such that the employee understands that they constitute, in part, the terms on which they are retained to perform their professional duties.
When an employee has notice of an organizational employment policy, they must ensure that their conduct in performing their job conforms to the terms mandated by such policy, just as they are bound by terms expressly included in their employment contract, by statutes prohibiting illegal behavior, or by duties that are generally implied in an employment context, e.g., the duty to
perform duties with reasonable care, in a sober state, and without physically
harming co-workers.
It is important to note that once an employer has given notice to an employee of the terms of an Internet use policy, the implied consent on the part of the employee that arguably flows from such notice is an important defense to many actions that may be brought against the employer by the employee.
Adequate notice should be given to employees of the terms of an organization’s policy. This can be done by circulating the policy periodically via internal memoranda; placing it in employee handbooks, union contracts, or collective bargaining agreements; incorporating the policy into corporate intranets; referring to it at meetings; or placing reminder stickers on workplace computers. It should be noted that privacy rights advocates have argued that,
as a bare minimum, a “splash screen” warning should be displayed each time
an employee starts their computer, particularly where there is ongoing continuous monitoring of employee Internet use. When considering notice, it is in an employer’s interests to over-communicate the contents of its Internet use
policy.
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