New Jersey Employment Law Blog

In our employment law practice, our business clients often ask about how to structure their employee handbooks.  Our core advice is to tailor the handbook to the way that the client does business, and to follow the KISS rule: Keep It Simple, Stupid.  Employee handbooks that are improperly constructed are legal minefields for employers, especially in New Jersey, so simpler is usually better.

Sometimes a business will bring us a "draft handbook" with the request that we review it quickly, "just to make sure it's OK."  Usually these come from small start-up businesses with a handful of employees, and run to hundreds of pages in length.  A little inquiry usually leads to a predictable conclusion.  In an attempt to save on legal fees, the prospective client has managed to get hold of a copy of an old handbook from a large company.  And if it's good enough for General Electric, or Verizon, or Johnson & Johnson, by golly it's good enough for my little start-up.  Right?

Well, invariably not.  And we have to tell them that we're sorry about the time they've invested in cobbling together their homemade handbook, but it's really not right for them.

Against this background, I ran across this post from the Business Litigation Blog published by Rogers & Tartaro.  It tells of the decision by Sam Zell (a billionaire) to create a "plain language" employee handbook for the LA Times newspaper.  The handbook apparently utilized humor and contained "mistakes." 

The point of the post is that the Sam Zell's of the world, where the employer's resources are almost unlimited, can make a business decision to take some liberties with the content of a handbook, without risking a catastrophic loss.  Smaller businesses generally cannot take the same approach without risking a legal catastrophe. 

Read the post.  It's well-written, sensible, and on the money.

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We have written before about the Doe v. XYC Corp. case and the legal chaos that can result from employees using office computers to access child porn on the internet. Another case has come down from the Ninth Circuit Court of Appeals --- yes, the one that conservative pundits love to ridicule --- that emphasizes the risk of criminal liability to employees and the importance of the employer handling its investigation in the right way. The case is United States v. Ziegler, decided on August 8, 2006. The issue was whether the employee had a reasonable expectation of privacy in the contents of his office computer. Here the issue was not civil liability of the employer but criminal liability of the employee.

Here are the facts in a nutshell. The owner of a company found that one of his employees had accessed child porn. The owner tipped off the FBI, which began an investigation. Through the company's computer monitoring techniques, it was able to identify the specific office from which the material was viewed and identified its occupant to the FBI. The company also provided the FBI with a copy of the suspect employee's hard drive on which investigators found several images of pornography.

The employee was indicted . He struck a deal to plead to a relatively minor count, subject to his motion to suppress the evidence discovered on his computer. If he won the motion he would walk away from the plea. The employee argued, in essence, that the FBI had directed the employer to make the backup copy of the hard drive, that the employer thus acted as an agent of the government, and therefore argued that the search and seizure violated the 4th Amendment.

Cutting through the technical stuff, the case turned on the question whether the employee had an objectively reasonable expectation of privacy in the office computer. Following the trend in these cases, it found that he did not have a reasonable expectation of privacy. The evidence was not suppressed. Thus, the plea stood and the employee was convicted of the crime.

There are two lessons here. First, even the supposedly ultra-liberal 9th Circuit holds that office computers belong to the business, not the employee. Any employee who treats an office computer as his personal property is taking a risk.

Second, the employer in question had the capability to monitor the use of its computers, had policies that governed the monitoring, and made sure that its employees knew about both. When the company discovered that possibly illegal activity was taking place with its computers, its president treated the matter seriously, notified the authorities, and cooperated with the investigation. By acting responsibly, the employer avoided any potential legal entanglement of its own.

Handling these matters in the right way is crucial to New Jersey employers in particular. If you don't think so, go back to the top and review our post on the Doe v. XYC Corp. case, where the employer was held liable, not for failing to investigate, but for failing to investigate well enough.

Yes, it all happened on the left coast, but New Jersey employers and employees can take a lesson from this one.

Posted In Employment Law News , Policies & Handbooks | Comments (0) | Permalink |

Blogging has hit the mainstream in corporate America. A recent article notes that Southwest Airlines, Google, Delta, and IBM have corporate blogs. And with them have come the predictable problems caused by employees who abuse them. Google and Delta, for instance, have terminated employees for misuse of corporate blogs.

The concern is not new. Many companies have policies related to internet and e-mail use in order to protect themselves from liability caused by employee misuse. Now that blogs are becoming widespread, that protection needs to be extended.

Blogs pose three major risks to companies:

The possibility of having people disclose company trade secrets.

Lack of control over negative information posted to blogs.

Potential for liability for a blog's content.

As with internet use and e-mail, inappropriate content on a blog could also create a hostile work environment, giving rise to liability for sexual harassment.

The remedy is for a company to implement a blogging policy that is appropriate to the nature of its business and its particular culture. Once the policy is implemented, it should be applied consistently. That's the best way to minimize the legal risks while maintaining the benefits of blogging.

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