If it's the employer's computer, it's not private

Let me give you a simple rule that a lot of people seem not to follow: Never send a dirty email or surf the web for pornography of any kind using your employer’s computer.

Although this rule is simple enough, issues of email and internet use are arising on a more and more frequent basis in my practise.

Here are some hypothetical examples.

After 6 years of service as a media specialist, Jeff, who was always surfing the web as part of his job, develops a habit of peeking at porn when he thinks no one else is around.

One day, there are too many pop ups exploding on his screen for him to close them all down as his boss walks into the office. The boss doesn’t say much at the time, but later asks the IT person to review Jeff’s internet use and a month’s worth of online voyeurism are printed up for the boss’s review. Jeff gets a warning letter that goes permanently into his file telling him that if it happens again, he’s gone.

If Jeff’s employer had a well-publicized and explicit policy indicating that employees using the internet to view pornography would be terminated without notice, Jeff could have lost his job with no severance to cover him or his family while he looked for new employment.

If he did lose his job, regardless of whether or not he got severance, he would have big troubles with references. Imagine Jeff’s old boss telling a prospective employer that Jeff was a good worker and very productive. Then imagine the big silent pause when the prospective employer asks why Jeff isn’t there anymore if he was such a good guy.

As part of her job as a traveling sales rep, Ann is given a laptop computer by her employer which she has with her all the time, including her overnight travels. The laptop, nonetheless, still belongs to the employer.

On those lonely nights in strange cities, she develops the habit of going online, exchanging risqué emails with her friends and downloading pornographic videos for her own entertainment.

Later, for completely unrelated reasons, Ann has a falling out with her boss and is terminated. She is given a severance offer. As part of the termination, she had to return to the laptop computer. Ann takes her severance package to an employment lawyer who writes a letter to the employer asking for more.

Meanwhile, back at the IT department where Ann used to work, the technician is cleaning up Ann’s computer to pass it on to the next person who needs it. Ann thought she deleted all the videos she downloaded, but she missed some.

Instead of Ann’s lawyer getting a response letter from the employer increasing the severance offer, he gets a letter indicating that the offer is withdrawn because it has been discovered that Ann has breached the well-publicized no-porn policy the company has.

This is called after-acquired cause and is quite valid. If you terminate somebody because there is a slow down in the business but discover the next day that they were stealing money out of the till, you owe them nothing. It does not matter that you were not aware of the behaviour at the time of the termination.

So, the lesson for employers is make sure you have a specific policy and indicate clearly that termination may result from a breach of the policy. If there is no policy, in the eyes of the courts there is no wrongdoing. If employees are allowed to go online to look at newspapers and there is no rule against pornography, the courts will not get into the business of imposing rules that the employer has not bothered to put in place.

The lesson for employees is, whether there is a policy or not, just don’t do it. Always remember that the employer owns the computer and nothing you do on it is private.

As published in The Hamilton Spectator, January 7, 2006. Ed Canning practices labour and employment law representing both employers and employees with Ross & McBride LLP.