The case currently before the Supreme Court, involving a police officer who used his mobile device to “sext” his wife, girlfriend, and co-worker, is a reminder of the need for great–not just good–policies surrounding electronic communications.  We are, indeed, in the electronic age; therefore, policies that were effective six months ago–may now be outdated.  What does this mean for U.S. employers and HR professionals?  It means you need to take out your current policies regarding employee use of computers, email, the Internet,…dust em off, and identify whether or not your policies cover use of mobile devices, posting of information on social media sites like Facebook, Twitter, etc., clarifies specifically what KINDS of mobile devices your people are using and what behavior is prohibited, and addresses use of social media and impacts to the organization…  The key here is ensuring that employees clearly understand that the equipment being issued to them is (1) owned by the company, (2) the equipment and messages and recordings sent and received electronically will be monitored, and (3) they have no reasonable expectation of privacy.   Also, that they have clear instructions regarding their use of social media, too.   I bring this up in this blog because of the what-ifs here… What if an employee made allegations that her supervisor is a “sexual harasser” and “predator” of his direct reports and posted it on her wall on Facebook??  Is that behavior covered in your policy–or not??

In the case currently before the Supreme Court, the officer’s immediate supervisor somewhat “trumped” the City of Ontario’s company policy by allowing personal use of the company-owned equipment–provided the officers paid for text message overage charges.   The question I have is this:  What if we had a supervisor who told one of his employees, “Fred, I know we have a policy regarding anti-harassment and all…but I want you to go over and put this Playboy magazine on Henry’s desk.  Since we know he’s gay, I’m sure he’ll find this hysterical…”  Eeeek, you say??  Of course you do, because anyone with a lick of sense would know that this supervisor is “stuck on stupid.”

We certainly wouldn’t tolerate a supervisor “trumping” the company’s anti-harassment policy and we would certainly hold him accountable for his actions.   So, I wonder how this current privacy case involving electronic communications will turn out.  What if the Supreme Court rules that the supervisor’s actions–in superceding city (company) policy–legitimately created a reasonable expectation of privacy for the officer?  What kind of Pandora’s box will we have opened??  I wonder if the ruling will then suddenly open the floodgates for other employment law cases in which a supervisor can create some sort of “safe harbor” for an employee, thus somewhat nullifying the policies we have in place?  I don’t profess to be a labor and employment law attorney, but I do pay attention to these kinds of cases.

When I saw the ADAAA enacted last year, I immediately knew Pandora’s box had been opened…  As I suspected, in a year and a half we now have many, many more employees claiming to have a disability in order to seek accommodations, or what I call “special deals” in the workplace… I’m not begrudging folks who legitimately have disabilities , migraine headaches or other issues that may qualify them as being disabled, but what I am saying is that rulings in these kinds of high profile cases often have severe ripple effects for American employers.   Let’s stay tuned to see how this turns out…in the meantime, go get your company policies, review them, and have a pow-wow with your legal counsel–pronto! :O)

See ya’ next time…

Natalie Ivey

Natalie Ivey, MBA, SPHR, is President of Results Performance Consulting, Inc. and is a professional speaker and writer with expertise in HR management and development and employee relations.

Published On: June 16th, 2017 / Categories: Blog /

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