Work surfers could be harder to police: lawyers

WELLINGTON (02/12/2004) - Planned changes to employment law could make it even more difficult for employers to discipline employees for misuse of computing and Internet facilities, a lawyer suggests.

This may be so even where a clear acceptable use policy (AUP) exists.

Under existing employment relations law, says Philips Fox partner John Hannan (pictured), as long as the employer has carried out a sufficient investigation of the alleged breach and come to a decision that is "reasonable as to the facts", considerable flexibility is allowed in disciplinary measures.

"An employer can be reasonable and lenient or reasonable and harsh."

If the new Employment Relations Law Reform Bill is passed, this test of reasonableness will become harder, Hannan says.

"The Employment Relations Authority will be able to substitute its own judgement of what is reasonable for that of the employer, and to be reasonable, the judgement must be fair to both employer and employee." He doubts the planned changes will affect a case involving a blatantly offensive breach of AUPs such as downloading of illegal pornography, or gross misuse of bandwidth, or where Internet activity detracts significantly from the employee's performance in the job.

"It's rather the borderline cases where it might make a difference."

Even where AUPs say company computers and Internet connections must not be used for leisure activities, an employee could argue that providing they are still doing their job adequately and are not costing the company significantly, their activity does not justify disciplinary action, Hannan says.

"They could argue that (the provisions) are as unreasonable as suggesting an employee should not use the company's electric light to read a book at lunchtime." It will still undoubtedly help the employer's position to have "an absolutely clear set of house rules" and to have employees explicitly agree to these, Hannan says.

In this regard, a "click-accept" of the conditions displayed on a computer screen may not be enough, says IT specialist lawyer Michel Wigley, of Wigley and Co. A written signature is advisable, and this needs to be clearly linked to the AUP document concerned.

"Many organizations who claim to have clear AUPs will fall down on this front if they are challenged," Wigley says.

A further difficulty is in defining terms, he says. Clearly the definition of pornography unacceptable at work would be much broader than the definition of "objectionable" in the Films, Videos and Publications Classification Act; but it must be carefully worded, as will any other provisions such as the nature of permitted personal e-mails.

The conditions should also specify clearly the rights of an employer to access an employee's e-mails and other private data, so as to avoid action under the Privacy Act.

The new provisions against unwarranted intrusion into private communications under the Crimes Act as amended last year (Section 16 A-F) are also something of an unknown quantity, Wigley says. There have, to his knowledge, been no test cases of these provisions.

Irregular access by an employee to the office computer system should also be in the mind of employers drafting internal acceptable use provisions, Wigley says.

Related changes under the Crimes Act last year attracted the attention of IT managers and lawyers.

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