The Contemporary Employee Handbook: Anticipating the Pitfalls Associated with New Technologies

August 28, 2014Articles InsideCounsel

This article was originally published on on August 28, 2014. Reprinted with permission from the August 28 issue of Inside Counsel. (c) 2014 InsideCounsel. Further duplication without permission is prohibited. All rights reserved.

Technology’s strength can also be its downfall in the workplace: It facilitates the quick and easy gathering of information and allows for instantaneous dissemination to multiple recipients. The immediate availability of social media, and employees’ access to the Internet generally, can give rise to a bevy of abuses. Savvy companies will anticipate the potential pitfalls associated with new technologies and ensure that their employee handbooks are sufficiently current and flexible to address them appropriately.

Employers should evaluate their vulnerabilities when crafting their social media, email and Internet usage policies, and not just from the perspective of today’s technology. Perhaps the most ripe area for abuse now and in the future is the unauthorized dissemination of confidential and proprietary business information or trade secrets. The prevalence of smart phones with cameras, and the promise of wearable technologies, means that employees or visitors can upload and share confidential information in an instant.

Companies should define the confidential information that they intend to protect specifically and consistently in all of their policies and restrictive covenant agreements. Policies should put employees on notice that, regardless of the medium or technology at issue, confidential information is not to be shared outside the company without the appropriate authorization. Employees who telecommute or perform work outside of the traditional office setting should be instructed to safeguard any confidential information. The penalties for violating these policies need to be strict and applied evenly.

While companies cannot predict what the preferred social media outlet of the future will be, they can structure their policies to withstand potential legal challenges while anticipating probable abuses. One should assume that the National Labor Relations Board (NLRB) will continue to come down on companies that discipline their employees for engaging in anything that looks like concerted activity. In the social media context, the NLRB has taken a broad view of what constitutes concerted activity, and even “liking” a post could be protected concerted speech. Defining confidential information will make any prohibition on its unauthorized use more likely to survive a challenge from the NLRB.

Employers also continue to be susceptible to harassment and other discrimination claims arising from the use of social media and technology generally. Policies should prohibit the posting or other transmission of any threatening, harassing or otherwise discriminatory comments about other employees or customers. Non-harassment policies should not limit the prohibited conduct to email or the Internet; employees should be precluded from sending inappropriate messages using any technology that the company provides at any time. Employees should be encouraged to report any messages that they find offensive or discriminatory and be provided with a clear reporting mechanism and assured that any complaints will be investigated.

The intersection of employer interests in the security of their data and other confidential information and employee privacy issues will continue to be an area of concern for all companies. Internet and email usage policies should notify employees that they have no expectation of privacy in their use of company systems and equipment, although employers should tread carefully when monitoring may involve the review of employees’ personal or privileged email communications.

Even more challenging issues accompany the increasing use of newer technologies like facial recognition software, fingerprint scanning and other biometric technologies. Some states restrict employers’ use of biometric data on privacy grounds. Certain scanning devices also may give rise to religious and disability-related accommodation issues. For example, the covering of portions of one’s face for religious reasons may interfere with facial recognition software. Companies should ensure that their policies put employees on notice of the types of technologies that they may use and afford employees an opportunity to seek reasonable accommodations for any religious or disability-related restrictions implicated by the technology.

When companies identify their vulnerabilities in advance and craft policies that anticipate the potential issues and risks with new technologies, they will need to revise their policies less frequently. That said, companies should review their employee handbooks at least annually, with an eye toward updating any practices that are no longer in effect, ensuring that all confidential information is protected and addressing any intervening changes in leave laws or similar legislation. Regardless of how employees receive the handbook, in paper or electronic form, they should “sign” (virtually or otherwise) acknowledgement forms, signifying that they have received and are responsible for reviewing the handbooks.

Handbook policies, if done well, can help companies respond seamlessly to new technologies. Companies should take the time to strategize about their vulnerabilities and technology-related needs when crafting their employee handbooks. Forward-thinking policies will ensure that companies have the flexibility they need to respond to any challenges posed by technology.