Employment Law -- Employee
Role of Electronic Data in Employment Lawsuits
What you do on company time and with your work computer, and other electronic equipment, is your employer’s business. Not only does your employer have the right to access your electronic equipment to see how you are spending your time but the information contained on the computer, smartphone and voicemail can later be used as evidence in an employment related lawsuit. Of course, if you were doing nothing wrong on your equipment then the information will support your side of the litigation. However, if you were using the equipment for personal or illegal activities then the electronic evidence may support the claims of your employer.
What Can I Do on My Employer’s Computer?
The short answer is that you can do anything pertaining to the work that you perform for your employer and anything that is expressly allowed in written policies on which you have been trained. Many employers have express policies against using work computers to view pornography, to gamble or to conduct illegal activity. Some policies also prohibit employees from shopping online, conducting personal business or browsing the internet for reasons that are unrelated to their job.
If your employer provides you with a laptop computer or smartphone and your employer allows you to take the equipment home with you when you are not working then you should consult your employee handbook or ask for a written opinion about how the equipment can be used at home. Most employers will continue to prohibit using the equipment for pornography, gambling and conducting illegal activities, but some employers will allow employees to use it for personal email and web browsing during off hours.
If your employer does not have a written policy regarding computer use then it is reasonable for an employer to expect that the computer will be used as a tool to complete the job for which you are being paid. A few personal emails, like a few personal phone calls, are unlikely to get you into trouble. However, if your employer finds that you are spending the majority of your day on personal or recreational matters and not on work then you may find yourself without a job.
What Information Can my Employer Access and Use Against Me in a Lawsuit?
Properly maintained electronic data can be persuasive evidence in a trial. Some experts make analogies between electronic evidence in employment lawsuits and DNA evidence in criminal lawsuits. If the chain of evidence is properly maintained then both types of evidence can be difficult to refute and difficult to keep out of the courtroom.
Your employer can legally access anything in your computer’s history including the websites that you visited, the content of the e-mails that you sent, and the contents of any instant messaging, chats or forums that you participated in using company equipment during company time.
Therefore, it is important to carefully consider how you use your employer issued computer, telephone, and smartphone so that your activities or your words do not come back to haunt you in an employment lawsuit.