The Lawletter Vol 34 No 3, June 4, 2010
As many employers have discovered too late, unrestricted use of the Internet and e-mail not only has the potential to drain productivity but also may subject an employer to liability for the improper use. These consequences were recently illustrated by employees of the SEC who spent up to eight hours a day surfing the Internet for pornography. Employers can protect themselves from liability, however, by implementing and enforcing a policy outlining the permissible parameters of employee Internet use, or an Internet acceptable-use policy ("IAUP").
The need for a well‑drafted and properly enforced IAUP is illustrated by several recent cases. In one case, Taxel Creative, Inc. v. Kelly, No. 93378, 2010‑Ohio‑263, 2010 WL 323430 (Ct. App. Jan. 28, 2010), the court held that an employee's termination was without just cause, despite the employee's purported violation of the employer's Internet use policy, and that, therefore, the termination did not render the employee ineligible for unemployment benefits. The employee had been terminated for excessive personal use of the Internet, but the employer's policy did not define what level of personal use was permissible, although it indicated that some amount of personal Internet use during business hours was expected. However, in another case, In re Pesant, 63 A.D.3d 1411, 881 N.Y.S.2d 227 (2009), the court held that a claimant was disqualified from receiving unemployment insurance benefits, because his employment had been terminated due to misconduct; the evidence established that the claimant had continued to violate his employer's Internet policy by downloading inappropriate materials to his assigned computer even though he had been previously warned about the consequences of such behavior.
A recent case from a New Jersey state court held that in order for an Internet policy to be effective in converting an employee's personal e-mails into company property, the policy must further a legitimate business interest of the employer's. Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54, 973 A.2d 390 (App. Div. 2009). Thus, the employer could not use the employee's personal e-mails to her attorney in her discrimination lawsuit brought against the employer. Significantly, the fact that the e-mails were directed to the employee's attorney was a deciding factor in the Stengart court's decision. In addition, the employee had been using a personal, Web‑based, password‑protected Yahoo e-mail account.
For the most part, the promulgation and enforcement of an IAUP has been recognized as a legitimate business decision. Pacenza v. IBM Corp., No. 04 Civ. 5831(PGG), 2009 WL 890060, at *8 (S.D.N.Y. Apr. 2, 2009) (slip copy) (granting summary judgment in favor of employer in employee's discrimination suit, stating: "IBM's policies prohibited the internet use that Pacenza engaged in and that prompted his termination."); Johnson v. Midcoast Aviation, No. 4:06‑CV‑1805(CEJ), 2008 WL 3200801 (E.D. Mo. Aug. 6, 2008) (unreported) (granting summary judgment to employer on issue of damages, because the court found that the employer would have terminated the plaintiff's employment when it discovered the plaintiff's violation of its Internet usage policy).