On-line threats to productivity, other problems for employers

By G. Phillip Shuler

While this topic is somewhat atypical for this column, contractors should consider this issue. With computers and ready access to the Internet now being standard-issue equipment in nearly every workplace, employers are beginning to see an impact on productivity as employees spend more and more time on line during working hours.

This lost productivity takes on various forms, as some now-famous industry studies have shown.

For example, consider that an August 2003 survey found that workers in the United States spend more than one workday each week surfing non-work-related Web sites - with 24 percent of them reporting that "shopping sites" are the most addictive, followed by news sites (23 percent), pornography (18 percent), gambling (8 percent) and auctions (6 percent). Understandably, employers and industry analysts who have studied this information agree that the amount of productive time lost to these online activities is, as one observer put it, "a huge issue."

To combat the increasing use of work time for online activity of personal interest, many employers have already implemented written policies and procedures covering the use by employees of company equipment during working hours.

Most of these policies simply establish that company-owned computers are to be used for business purposes only and make violation of that policy grounds for discharge. But some employers have gone further, utilizing software and other means (closed-circuit security monitors, etc.) to monitor and limit employee activity online.

Along these lines, it has been reported that 78 percent of employers block employee access to pornography, 47 percent block access to gambling sites, 20 percent block shopping and auction sites and 4 percent block news-related sites.

Alarmingly, 25 percent of all employees in the United States admit that they are actually "addicted" to going online, but only 8 percent of employers report any knowledge of this "workplace Internet addiction." While casting the Internet as a workplace "addiction" may be overstating the point, the idea is not without support.

In just one year, the number of Americans accessing the Internet at work grew 17 percent. In August 2003 alone, nearly 46 million office workers accessed the Internet, which is the highest rate since Nielsen-NetRatings began measuring the "at-work" Internet audience in January 2000.

Although men still outpace women in overall Internet usage, female office workers were the fastest growing Internet demographic over the past year, rising 23 percent to 20.4 million female office users online. The number of men accessing the Internet over the same time period rose only 12 percent to nearly 25.3 million. Nielsen-NetRatings also found that men spend more time online, access more sessions and view more Web pages than women.

As an example, in August 2003 men averaged nearly 31 hours online, compared to 27 hours for female office workers. Breaking down those numbers, men averaged 54 sessions per month, compared to 50 sessions for women, and men accessed more than 1,900 different Web pages, while women accessed fewer than 1,700 pages.

These types of online threats to productivity and employers' efforts to deal with them are not entirely new. And as the proliferation of the Internet and new uses for it grow, additional threats to productivity emerge. The latest of these is the Internet web log - commonly known as a "blog."

These are essentially personal "home pages" for the blog's author, typically known as the "blogger," that are updated regularly with new information. Blogs can be set up, updated and maintained from virtually any computer and are most often used to publish the blogger's opinion on any variety of subjects or other items of interest - politics, social issues, etc. It is not at all uncommon for the blogger's topic to be his or her employer or conditions at work.

Thus, blogs not only represent a potential threat to productivity at work, they have the potential to negatively impact employers in other ways as well. For example, employee bloggers can inadvertently appear as though they are "representatives" of the employer, thereby blurring the line between the employee's opinion and the company's.

Other examples are more subtle. For instance, there is the recent case of the airline flight attendant who was fired because she posted less-than-tasteful photographs of herself wearing her airline uniform.

Another example is that of a computer company employee who was fired for having posted photographs of a competitor's computers in use in his employer's workplace. Thus, the problem with these on-line activities can range anywhere from simply an increase in lost productive time, to "bashing" of the employer on an employee's blog, to simply casting the employer in a negative or embarrassing light - even inadvertently.

The question, then, is how best to deal with this problem. While there are federal and state laws that protect individuals' online privacy, common exceptions to those laws permit employers to specify or limit how company-owned computers, telephones and other electronic devices are to be used during working hours and whether they may be used for non-business purposes at all.

It is becoming more and more the accepted wisdom that regularly updating your general technology-use policies, to keep up with tech trends, is the best approach.

This is not to say that there should be a separate portion of the policy to address each and every one of the current and emerging possibilities for abuse; this would potentially result in policy overload and policies so wide-ranging and complicated that it could not be effectively implemented or policed.

Rather, employers should probably recognize that some incidental use of company computers for employees' personal needs is inevitable in this day and age - just as use of the office telephone has become.

With this in mind, employers can concentrate on creating or refining policies that restrict use that actually jeopardizes productivity in their particular business or use that otherwise could negatively impact the company or its reputation. While some employers may be hesitant to include policies that purport to restrict employees' online activity when they are not at work, they are within their rights to do so.

Policies on this front should focus upon protecting company goodwill and intellectual property - including the company's name, protected trademarks, trade dress and any confidential information. By doing this, employers can properly keep employees from using or disclosing these things - even if they cannot actually restrict the amount of time an employee spends online outside the workplace.

One word of caution. Personal blogs and "postings" in Internet chat rooms and on electronic "message boards" have become fertile ground for employee speech that constitutes "protected activity" under the Labor Management Relations Act. Naturally, that speech is protected whether it occurs in the workplace or online.

This is why policies that restrict employees' online activity should focus on reducing unproductive work time, and protecting the employer's goodwill, intellectual property and confidential information from unauthorized use or disclosure. To the extent that employers intend to confront employees about their online activities, before actually doing so they should take care to ensure that protected activity is not at the heart of the employees' activity.

Naturally, the points addressed in this column are only a few examples of the potential problems lurking online but they offer a glimpse of the reasons why all employers should protect themselves from lost time and online threats to their goodwill or intellectual property.

Be it questions about formulating or refining company policy, or issues of what constitutes protected activity, your labor and employment counsel can get you pointed in the right direction.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.