Moffatt Thomas Practical Suggestions for Electronic Device and Internet Use in the Workplace C. Clayton Gill December 18, 2012

The Rule of Three 1. Tell them the behavior you expect 2. Tell them the consequences for violating your policy 3. Consistently and fairly enforce the consequences

DO NOT PUT ANYTHING IN WRITING THAT YOU ARE NOT WILLING TO ENFORCE

KEEP IT SHORT AND CONCISE

BE REALISTIC

Technology Is Pervasive in Our Society  Texting  Facebook, LinkedIn, Twitter  Tablets  Cell phones with cameras and video

BE REALISTIC  Banking Online  Employee Benefits  Communicating with Friends and Family Members  Building and Maintaining Relationships

The Important Things Your Policies Need to Address 1. Sexual harassment and discrimination issues 2. Expectations of privacy 3. Disruption to workforce 4. Viruses 5. Protection of intellectual property 6. Defamation/Consumer Protection Act claims

Sexual Harassment and Discrimination Issues You should not knowingly allow your employees to use company technology to: send off-color jokes view, create, or post inappropriate things (pornography) using technology ( s or voic s) to harass on the basis of race, sex, age, sexual orientation, marital preference, religion, national origin, genetic information, physical or mental disability, or other protected status

Expectations of Privacy  The Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures, only applies to government actions  Some federal and state laws provide rights to privacy Electronic Communications Privacy Act ("ECPA") -- generally prohibits: (1) unauthorized and intentional interception of wire, oral, and electronic communications during the transmission phase, and (2) unauthorized accessing of electronically stored wire or electronic communications.

Expectations of Privacy (cont’d) ECPA has consent exception, thus the need for a no expectation of privacy policy Idaho does not have a right to privacy statute like other states, but appellate court decisions from Idaho suggest that a court may balance the business need for the information with the employee’s expectation of privacy -- Cantwell v. City of Boise, 146 Idaho 127, 191 P.3d 205 (2008)

Expectations of Privacy (cont’d)  Your policy should advise employees that they should not have any expectation of privacy on anything they create, view, store, or access using the company's computer network or any of the company's electronic devices (desktop computers, laptops, cellular phones, tablets, voic , etc.)  Should you advise employees of any electronic monitoring?  Legal issues to consider if you do monitor employees’ voic s, s, and Internet usage  What about Gmail, Yahoo mail accounts, and other third party Internet accounts?  The reasonable suspicion standard for employee searches

Disruption to Workplace  Limit usage of company electronic devices for personal reasons to break periods, lunch breaks, or after hours and only if such usage does not interfere with other employees’ abilities to use those devices for business purposes  Advise employees that by using the company's electronic devices for personal purposes they agree to release the company from any claim associated with a third party obtaining their passwords or other confidential information  Address usage of personal cell phones in the workplace -- e.g., personal calls and text messages

Viruses  Advise employees that they will be responsible for any damages caused to company's electronic devices or computer network because of any virus downloaded during the employee's personal use of a company electronic device Prohibit employees from downloading or installing software or other materials without your permission Advise employees that their personal use of the Internet should be limited to viewing and accessing safe and well-known websites

Intellectual Property  Make sure your electronic usage policy addresses the misappropriation of both company intellectual property and the intellectual property rights of third parties  Protecting company IP rights Confidentiality agreements signed by employees:  make this a separate agreement, as employee handbook usually contains contract disclaimer  address assignment of IP rights, work for hire, etc.  define what is considered company IP (client lists, product formulations, manufacturing processes, etc.)  advise employees that they shall not disclose company’s IP to any third party without company’s written permission

Intellectual Property (cont’d) Advise employees that they must not use social media (Facebook, LinkedIn, or Twitter) to discuss company's confidential business matters Advise employees that the use of camera phones and other similar technology devices in the workplace is strictly prohibited Advise employees with access to company's IP that they are responsible for limiting others’ access to company IP by using password protections, timing out monitor displays after periods of inactivity, etc.

Intellectual Property (cont’d)  Avoiding third party misappropriation claims Advise employees that they are prohibited from downloading, copying, or transmitting software and/or documents protected by copyrights or licensing agreements without written permission from company  Dangers of open source software Open source software licensing agreements typically require public disclosure of any derivative work created using the open source software

Social Media Policies  Facebook, LinkedIn, Twitter, Blogs, Internet bulletin boards, and chat rooms risks Defamation claims Unfair trade practice claims Consumer protection act violations  NLRB decisions Cannot prohibit employees’ use of social media to post information regarding pay and benefits or working conditions as those are collective bargaining rights afforded to employees under the NLRA

Social Media Policies (cont’d)  What to do Advise employees that they are not authorized to publicly post any representations or statements regarding the company's products or services, about the company's employees, representatives, contractors or agents, or about the company's competitors, suppliers, or customers without the express written permission of the company Advise employees that they may be subject to discipline, including termination, for making any fraudulent, false, or misleading statement in a public forum regarding the company or its employees, representatives, contractors or agents, or about the company's competitors, suppliers, or customers Advise employees that they will not be subject to discipline for using public forums to exercise any rights granted to them under any federal or state law that grants them collective bargaining rights

For Further Information or Questions, Please Contact: C. Clayton Gill Moffatt, Thomas, Barrett, Rock & Fields, Chartered 101 S. Capitol Blvd., 10 th Floor Post Office Box 829 Boise, Idaho