Many companies trusted their staff with unfettered access to the Internet, only
to be hit with settlement payouts to employees who received sexually explicit
e-mails or were otherwise harassed via the company’s computer
equipment.Now, IT departments may be making a similar mistake by trusting content filtering software and other technologies to mitigate the threat of hostile workplace liability rather than focusing on the real solution, which is working with HR and management to actively enforce your company’s policies on Internet and e-mail use.
“There’s no question that IT departments can monitor employees' Internet usage; it’s just a question of will,” said Rodney Glover, a Washington, DC-based attorney and published author on Internet use policies and employee privacy issues. “Having a policy in place and then failing to enforce it is one of the worst things you can do, in terms of a plaintiff’s claims.”
Knowing the threat is just half the battle
Most companies are taking some action, Glover said, on the liability threat posed by employee misuse of company equipment, such as viewing or circulating objectionable materials or harassing other employees. His assertion is backed up by reams of industry research, including a 2001 American Management Association survey that reports 77 percent of major U.S. firms now monitor employee communications, including phone calls and e-mails. Similarly, The Privacy Foundation estimates that 14 million people, or 35 percent of the U.S. workforce, are monitored every time they use e-mail or the Internet—a figure that has doubled since 1997.
With this emphasis on preemptive technologies, why has the number of electronic harassment suits continued to rise? The risk, experts say, is the possibility of your system admins or, even worse, your management team undercutting your efforts by failing to follow up on the company’s stated policies with comprehensive, swift, and decisive action.
“Because our appliance gives the customer all the levers, they can turn our good solution into a lousy solution in a hurry,” said James Punderson, the CEO of Networks & More, which produces the ISBoss content filtering appliance.
Like most content filtering systems, ISBoss comes preloaded with a list of known “bad” URLs and filters for objectionable terms, including sexually explicit language and racial slurs. But lax admins can set the thresholds for these filters so low that virtually any type of material can make its way onto your client systems, said Punderson, whose product was created for and marketed to educational organizations.
Similarly, admins can simply fail to report violations of company Internet use policy to the appropriate managers. But perhaps the most damning breakdown of a content monitoring chain happens when the HR department or other managers fail to do anything about notices of misconduct.
"If you've got someone pulling down Playboy and circulating it—it's not all that uncommon, believe it or not—if you have a policy and you know it was going on, and yet you did nothing about it…that's very strong evidence to bring before a jury,” said Glover, whose employment law practice has gravitated toward issues of electronic privacy over the last few years.
More often than not, electronic harassment policies fall prey to the all-too-common hobgoblin of office politics, Glover said, and not an IT breakdown. "If a CEO or the company's top salesman goes out and pulls down something pornographic, the company may look at this differently than if some clerical staffer does the same thing,” he said. Such favoritism actually is among the most damaging missteps in the eyes of the courts, he added.
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