Stuart Rudner is a Partner in the Labour & Employment group at Miller Thomson LLP, practicing out of the Toronto and Markham offices. Our thanks to Stuart for contributing valuable and insightful content for our newsletter and blog articles.
In the past, I have written and spoken frequently on the topic of how organizations should use policies to their advantage. With respect to the use of technology, I have said that organizations should be sure to do the following:
- Have a policy to deal with any issue of concern to the organization
- Use clear and unambiguous language - avoid vague terms such as “reasonable” where possible
- Ensure that the policy complies with the applicable legislation in each jurisdiction where there are employees. (one size does not necessarily fit all)
- Update the policy as technology and society changes (no one had a policy that referenced social networking sites four years ago…)
- Monitor behaviour as appropriate to ensure compliance
- Communicate the policy regularly
(a) Make sure all employees & managers are aware of the policy and any changes
(b) Post it (hard copy and/or electronic) somewhere accessible
(c) Append it to the employee training manual or to employment agreements
(d) Have employees sign-off that they have reviewed the policy on a regular basis
(e) Have regular reminders (information sessions, distributions / redistributions)
(f) Ensure that employees understand the concerns and reasons for the policies
- Provide training where appropriate to staff and managers
- Be clear about the consequences of breaching the policy. Warn employees that they may be disciplined up to and including termination
- Respond immediately and thoroughly to abuse by imposing appropriate discipline
As I have tried to make it clear, the first step is to draft an appropriate policy. However, as we all recognize, the best drafted policy is completely useless if it is stuffed into a binder and left to collect dust on a shelf. Once policies are drafted, they must be disseminated and enforced.
With respect to the use of technology, organizations have been encouraged to monitor employee behaviour and compliance with rules and policies. For example, there is relatively little doubt that employers are entitled to monitor employee internet and e-mail usage on corporate equipment. This would apply to desktop computers, as well as portable devices such as laptops, Blackberrys and iPhones. However, a new question is emerging: “what happens when the equipment is not owned by the corporation, but by the employee?”
Recently, there has been a growing trend toward “employee liable devices.” Essentially, what this means is that instead of having the corporation obtain and distribute equipment such as Blackberrys and being responsible for their cost and maintenance, the devices are purchased individually by the employees, who are responsible for paying for the usage (perhaps with some reimbursement for business usage) and maintenance.
There are a number of reasons why this has become more common. The recession has led many organizations to tighten their belts and seek new and creative ways to reduce costs. Having employee liable devices is one way that they can do so. Furthermore, the exponential growth in the number of devices available has led many employees to ask that they be able to choose their own device, rather than being forced to use the corporate standard. For example, some employees want to be able to use an iPhone as opposed to a Blackberry. In the past, organizations typically denied such requests and maintained strict control over the types of devices used and the ways in which they could be used.
Under the corporate liable system, it is relatively easy for an IT department to create “policies” or rules that restrict the functionality of the devices. For example, while a Blackberry Bold may be capable of recording video, many organizations block this feature. However, when the staff of the organization is using a multitude of devices, it becomes difficult, if not impossible for IT to maintain significant control. This creates a very real concern regarding potential liability. First, it will be difficult for organizations to control how the devices are used, so that cameras, video and other features will be more accessible. Furthermore, while it may have been relatively easy to monitor what employees were doing on corporate equipment, it will be virtually impossible to do so if the equipment is owned by the employee. As a result, policy breaches, dissemination of confidential information, and other inappropriate behaviour may not be caught.
Furthermore, the current devices and smartphones are much more that telephones; they are really small computers which carry vast amounts of information. There is a very real security concern when an organization’s employees are walking around with a virtual filing cabinet that contains information such as customer lists, secret processes, and other confidential information. While organizations may have technology in place to “wipe” all data on a device when it is reported lost, it is unlikely that they will be able to do so if the device is owned by an individual. As a result, there is a very real concern that confidential information will be compromised.
The short term gains of switching to an employee liable setup, which may include reduced costs and a reduction in employee complaints over the device chosen, may well be offset by the potential liability that is created. For that reason, employers should think twice before switching to an employee liable set up. If they do adopt such an approach, even the best drafted and enforced policies may not be sufficient to protect them from the risks that they expose themselves to.
Stuart E. Rudner
Miller Thomson LLP
Tel: 905.415.6767
or 416.595.8672
Fax: 905.415.6777
Email: srudner@millerthomson.com
Web: www.millerthomson.com
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