USE AND ABUSE OF COMPUTERS IN THE WORKPLACE by Bob Gregg Boardman & Clark LLP One South Pinckney Street, 4th Floor P. O. Box 927 Madison, WI 53701-0927 Telephone (608) 283-1751 email@example.com
Our major form of workplace communication is becoming electronic. People do not have faceto-face, oral conversations. Email is taking over. It is fast, efficient—and dangerous. Employees just rip off an email with far less thought or editing than a letter. The e-system has replaced the break room for office gossip, harassment, betting, romantic advances and a myriad of other forms of indiscretion or illegality. Yet, when the employer imposes rules or monitoring, employees resist, or sue, over invasion of personal use of “their” computer. Further, e-discovery and public record requests are eroding the concept of personal use in favor of the “right to know.” E-DISCOVERY IN LITIGATION This is not an article on discovery. Electronic discovery is a huge and growing issue. E-discovery deserves mention, though, because it is a driving force in changing employers’ computer policies and practices. It used to be privacy cases and harassment claims which were the impetus in workplace computer practices. Now, electronic discovery concerns are becoming the driving force. Employers lose cases and are sanctioned by the courts because they did not preserve email. A sanction of $175,000 was imposed for deleting emails after the company should have been on notice of a potential claim (legal counsel, HR and IT failed to effectively communicate). Zubulake v. UBS Warburg LLC, 217 FRD 309 (S.D. NY, 2003). The defendant may have to bear the full cost of retrieval and restoration of improperly deleted electronic records. [$236,000 in
BOB GREGG is a partner with Boardman & Clark LLP, Madison, Wisconsin. He has over 30 years of experience in the area of employment relations and has conducted over 2,000 seminars on employment law. Bob litigates employment cases. His main emphasis is to help employers identify and resolve problems before they turn into lawsuits.
Copyright© 2009 by Robert E. Gregg. All rights reserved. Rowe Entertainment v. William Morris Agency, 205 FRD 421 (S.D. NY, 2002); over $1 million in Medtronic Sofam or Danek v. Michelson, 229 F.R.D. 550; 2003 U.S. Dist. Lexis 14447 (W.D. Tenn., 2003).] Absence of computer records creates the appearance that one is trying to hide the truth. It can create the presumption that any unproduced record should be viewed as an admission of fault. This created a $2.1 million verdict against the employer in Arndt v. First Union Bank, 613 S.E.2d 274 (N.C. Ct. App., 2005). Archiving overkill? The general rule is that records should be preserved once there is reason to know of or “anticipate” a claim might ensue. Some organizations are now taking extra precautions and archiving all emails for the full statute of limitations period for any possible sort of claim. This can be six years, or more in some states. Say nothing—type nothing. In a recent article on “Emergency Response Coordination,” the authors, liability defense attorneys, advised that there should be no emails, text messages or ejournal/planner notes made during or immediately following an emergency event. The warning was that all of this is discoverable. In the height of the moment, those involved may tend to put down first impressions and unfounded opinions which later turn out to be inaccurate. However, once in the system, they become “evidence” and possible admissions. The advice was that there should be only official communication on the systems and that reviewed by a coordinator in advance; no personal messages or notes. (Emergency Response Team Coordination, For the Defense Journal, Defense Research Institute, July 2006.) This advice seems almost impossible to follow in today’s electronic environment, where everyone has computer access and most communication is electronic. Routine communications...
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