By: Patricia Collins, an Associate at Antheil Maslow and MacMinn, located in Doylestown, Pennsylvania
www.ammlaw.comWhile technology improves employee productivity and accessibility, it also creates new challenges for employers in hiring and creating effective employment policies. Employers must consider the best way to use new, less formal, sources of information in hiring, the circumstances under which employees can use the employer’s property for personal use, and the monitoring of employees’ personal and professional use of its property. An employer can avoid unnecessary liability by maintaining formal hiring policies that focus on qualifications for the position, and enacting clear use and monitoring policies that are enforced for all employees.
Hiring presents a unique set of challenges. There are sources of information available to employers that candidates sometimes do not consider. The candidate who posts his questionable photos from his vacation on his Facebook page that is not kept private is not thinking about whether a potential employer will see them. The employer must decide which information to rely upon in making these decisions. There are laws that prohibit employers from considering things like age, gender, religion, marital status, disabilities, and even the existence of a criminal record in determining whether to hire someone. Employers should avoid questions relating to some of these categories during the interview process. Indeed, in Pennsylvania, and other states, if a person has been convicted of an offense that is unrelated to the duties of the position, the employer cannot refuse to hire the applicant because of that conviction.
On the other hand, failure to conduct background checks may violate the law or result in liability for the employer. Take, for example, the applicant for a position with access to client funds, with a history of arrests for embezzlement in other jurisdictions. If the employer hires the applicant, does not do a search (whether through a formal or informal process), and then the newly hired employee steals client funds, this creates liability for the employer. Likewise, there are positions, such as child care positions, where the law requires the employer to conduct background checks and obtain child abuse clearances.
Several types of background checks are available to employers: reference checks, driving records, criminal background checks, including FBI fingerprint checks, and credit checks. Professional social networks, such as Linkedin.com, and informal sources, such as Google.com and Facebook.com, also exist.
Candidates for employment should expect that employers will conduct background checks and consult with professional networks. The more difficult issue is the informal search. Perhaps the embezzler’s arrest history in other jurisdictions will not come up in a criminal background check limited to one state. It is tempting for an employer to use informal sources because so much information is available. But, consider the risks: if the employer “Googles” a candidate, and learns the candidate’s religion, age, marital status, advocacy for a medical condition from which the candidate suffers, or membership in a parent-of-triplets support group, the employer now has information that he never could have (or should have) obtained during the normal application process. And such information is dangerous. Perhaps the employer prints out the results of the search, and includes them with the candidate’s application and resume. When the candidate is not hired for the position, and sues for race, gender, disability or pregnancy discrimination, this will not look good for the employer.
To balance these risks, an employer should evaluate the need for background checks based on the nature of their business, the duties of the position and the applicable law. The employer should avoid informal sources and use formal background checks and professional networks. The embezzler’s reference checks may raise some red flags. It will be easy to decide not to hire where the references provided do not exist, the reference will not confirm employment, or the reference is too far in the past to be reliable. In such a case, even the resume could present concerns – several employers for a short term without a good explanation for the frequent change in employers is itself a red flag. In fact, if the position provides that much access, a broader background check is justified. The goal is to make a hiring decision based on qualifications only. This is not offered as idealistic advice, but rather as a method of risk management. Where the employer has reviewed only information relating to qualifications, the employer cannot be accused of relying on information unrelated to qualifications. Also, prior to conducting any background check, employers should notify candidates that it will do so. The best practice is to make a “conditional” offer of employment to the qualified candidate, and then conduct the background check. If the background check turns up information that renders the applicant unqualified for the position, the employer can withdraw the offer. Consent is required prior to conducting a credit check.
Once an employee is hired, the challenges and opportunities presented by new technologies again require an employer to chart a careful course. Employers can establish policies to minimize risk as well as prevent abuse on the part of employees. Such policies should cover how and when employees can use the employer’s computer, internet access, and other technology, and how and when the employer can monitor such use.
Many employers have policies that prohibit personal use of the internet or computers at work under any circumstances. But the truth is that such a policy becomes increasingly difficult to enforce as we become more dependent on email, instant messaging, texting and the internet. Many parents communicate with their children’s schools during the day by email. Some people run their “errands” at lunchtime using the internet, or coordinate their social schedules through email. Employees may arrange a lunch or other social activity with each other. The employer must decide how much of this type of activity is permissible, and create a policy accordingly. It is important for an employer to follow its own policies. The employer cannot “look the other way” for some employees, but discipline other employees for violations. This can result in accusations of discrimination or unequal treatment. For this reason, the policy should be a realistic assessment of the employer’s business needs and ability to enforce the policy.
Among the things that an employer should consider in creating its policies is whether to police content. Great risks are presented by the ubiquitous email “forward” -- the dirty joke, the chain letter, the political material. These types of emails are often offensive, and can violate any number of prohibitions against harassment and discrimination. Even if the material does not create liability, where the email causes a complaint, it costs the employer in terms of investigating the complaint, and addressing the issue with sender and recipient. The risk to the employer lies in not having a policy and not addressing a complaint. The employer should have a policy that prohibits the use of email to engage in harassment or to send offensive material, and the policy should include an effective complaint and investigation procedure.
Sometimes professional emails also present an issue. Perhaps an employee is forwarding trade secret or confidential information to his own personal email, or to a competitor who may become a new employer. Perhaps an employee is communicating improperly with a client or customer. Sometimes emails reveal that the employee is unresponsive to clients or customers. This problem raises the issue of monitoring. Likewise, productivity concerns force an employer to consider monitoring. Where the employer suspects that the employee spends his day shopping on the internet, or playing on-line poker, the employer may want to monitor the employee’s use.
Most employers have access to technology that would allow them to monitor use from a remote location. The employee may never know such monitoring occurred. But, the law does not necessarily permit this type of monitoring solely because the computer, server or internet access belongs to the employer. There are both federal and state laws that prohibit interception and disclosure of, inter alia, electronic communications, and include both criminal and civil penalties for such violations. For this reason, an employer should have a policy that notifies each employee that they have no expectation of privacy in anything that is viewed, accessed, received or sent on the employer’s email system, internet, computer, or servers. In addition, the employee should sign a consent to monitoring as a condition of employment. Finally, the employer should not monitor unless it has a good business reason to do so.
The employer must also consider the nature of the information obtained during the monitoring. Although the employee may have consented to the monitoring, and engaged in conduct that justified the monitoring, this consent and justification cannot overcome other privacy protections, such as attorney-client privilege or the doctor-patient privilege. The employer should not rely on these otherwise private communications to make employment decisions.
Sometimes, an employer need not monitor because the improper activity is publicly available: blogging and, more recently, “tweeting,” create their own issues, but these are relatively easy to address. For example, if the employer discovers that the employee spends his day blogging at work, this is easy to assess without reference to monitoring or privacy concerns. The blog will contain the dates and times of all entries. If the blog contains references to the employer’s confidential information, the employer is free to terminate for violations of its confidentiality policies. Some employers encourage this type of activity as it creates the impression that the employee is an expert, or at least an observant participant, in a particular industry. Other employers forbid such activity during work hours as a violation of “personal use” policies. The advent of sophisticated mobile devices complicates this analysis to a certain degree. If the “tweeting” occurs through the employee’s mobile device, there is no violation of a policy that prohibits personal use of the employer’s property (assuming the device belongs to the employee), but there may exist productivity concerns.
An example illustrates the issue: Many attorneys in large firms maintain blogs where they recount the trials and tribulations of a young attorney in a high pressure career. Such a blog may improperly reveal attorney-client privileged communications or other confidential information. It may violate the firm’s personal use policies. If the attorney is particularly critical of a partner in the firm, it may create issues of insubordination. The blog may reflect other wrongdoing on the part of the attorney: failure to follow directions, improper billing, disseminating false information about another employee, writing a blog during work hours, to name a few (notably, many of these blogs are “anonymous”). The firm can discover any of this wrongdoing simply by following the attorney’s entries, and then the firm may discipline the attorney accordingly.
The firm in this example can protect itself by having good policies, and enforcing them uniformly. The firm, as do all employers, will have to continue to adjust its policies to allow for new technologies. A good policy will notify the employee of the rules, and take into consideration the realities of the employer’s business and the applicable law. Likewise, a good policy will allow the employer to use new technologies to grow its business, increase productivity, and improve conditions for its employees. “Googling,” “tweeting” and other new technologies present their legal challenges, but these challenges are easily met with a good policy and a focus on performance and qualifications.
