Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

When my trial is over (end of March??!!), perhaps I'll be able to tell you all about the madness that is sometimes the Connecticut civil court system.

By now, you've probably seen the strands of a survey by the AMA floating around the Internet, suggesting that most employers are terminating people based on their use of the Internet. In case you haven't seen the study, let me save you some time by offering up the clips you need to know.

The 28% of employers who have fired workers for e-mail misuse did so for the following reasons:Cops violation of any company policy (64%); inappropriate or offensive language (62%); excessive personal use (26%); breach of confidentiality rules (22%); other (12%).

The 30% of bosses who have fired workers for Internet misuse cite the following reasons: viewing, downloading, or uploading inappropriate/offensive content (84%); violation of any company policy (48%); excessive personal use (34%); other (9%).

Employers are primarily concerned about inappropriate Web surfing, with 66% monitoring Internet connections. Fully 65% of companies use software to block connections to inappropriate Websites—a 27% increase since 2001 when AMA/ePolicy Institute first surveyed electronic monitoring and surveillance policies and procedures. Employers who block access to the Web are concerned about employees visiting adult sites with sexual, romantic, or pornographic content (96%); game sites (61%); social networking sites (50%); entertainment sites (40%); shopping/auction sites (27%); and sports sites (21%). In addition, companies use URL blocks to stop employees from visiting external blogs (18%).

So those are the numbers. Some of it I get and support, but a lot of it smacks of items that are sooo yesterday.

First up, I get that email is a conversation, so any idea and language that you put out there is subject to all the policies that you have in your handbook. That's good. Professional conduct, harassment policies, etc. are all applicable to what you put out there in email. That's the way it should be. Whether someone gets a warning, or is terminated for email or web browsing related to these items, depends on a lot of factors, such as severity and past history.

Here's my big pain point. If you are terminating someone for excessive use of the Internet, you probably haven't done your job from a performance management standpoint. Stop me if you've heard this one before. Sally's performance is lacking. Sally's manager comes to you indicating every time he walks by Sally's cube, she's on Facebook. Sally's manager wants to pull reports for that "gotcha" moment.

Is your next question "How's Sally's performance?" Once you're told that the performance is less than stellar, is question number two a derivative of "Tell me about the conversations you have had with Sally about her performance?"

My strong belief - excessive Internet use isn't a policy issue, it's a performance issue. There's a lot of variability across managers as to the definition of "excessive". Good luck defending the consistency issues there.

And don't even get me started about the wisdom of blocking entire categories. Dirty sites are an obvious one, but do you really want to block social networks where you can pick up candidate referrals? Blogs as an entire category?

That's crazy talk. Manage what's "appropriate" in Internet use by managing performance.

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There's been a lot of good material this week and there just isn't time for full-fledged posts on each of them. But check these other posts for some additional information or background on various employment-law topics that may have an impact in Connecticut.

• The Word on Employment Law has a good alternative take on the Tribune Company's new employee handbook that I posted on yesterday.  Ultimately, I don't think John and I differ that much -- keeping handbooks readable to employees (and avoiding unnecessary legalese such as "whereas" or "notwithstanding the foregoing") is an important goal in any drafting exercise.  But making sure that your handbook doesn't confuse your employees or send your employees mixed messages is just as important as well.  The Ohio Employer's Blog has also added some insight too. 
  
• Overlawyered refers to a New York Times article over the weekend about the unintended consequences of the Americans with Disabilities Act.
• Ross' Employment Law Blog  talks about the decision late last week by U.S. Supreme Court' to take on three new employment law and ERISA cases this term.  The cases will address issues such as: "Is cooperating with internal investigation protected activity" and "Which party has burden of persuasion in establishing 'reasonable factors other than age.' under the ADEA."  It will also address the ERISA question of what standard of review should apply where a plan administrator both decides claims and pays claims.  Ohio Employer's Blog also chimes in on the subject as does the Workplace Prof. 
  
• Workplace Horizons reports on a potential new Microsoft program that would take employee monitoring to a whole new level.  A patent application by Microsoft describes a system of components that would use various "physiological or environmental sensors to detect at least one of heart rate, galvanic skin response, EMG, brain signals, respiration rate, body temperature, movement, facial movements, facial expressions, and blood pressure.”
• And finally, there was this amusing article from the BBC which asks the question: Why Do U.S. Pickets Walk in Circles? (H/T Workplace Prof.)  Apparently, union workers strike differently over the big pond.
  

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Next time you're driving on the highway, take a look at the road signs. Not for what they say, but how they say it.  Are they new or worn? Easy to read or difficult to see? Straightforward or confusing?

If you drive down I-95 around Fairfield and Westport, you'll notice something different lately. The signs are fresh, easy to see and clear.  In fact, when you start getting down to Norwalk or so, you'll be struck by how worn out the signs are in that area of the state and how unreadable some are.  (A terrific article in the New York Times from August 2007 discusses the nationwide change in signs to a new "Clearview" font, if you're curious.)

I was thinking about this after I had a discussion with a client recently about the benefits of reviewing their employee handbook.  "It's fine; we've had it for 15 years without an issue," they said.  But it turns out it wasn't "fine", the handbook lacked some of newer or updated provisions that have been drafted to comport with changes in the law.  Indeed, the handbook was a confusing hodge-podge of policies that were, at times, unclear, outdated, and confusing.

If your company's handbook is as old as some of the road signs out there, here are four areas to re-examine.

1. At-Will Disclaimers -  This disclaimer will notify employees that they are at-will and that this handbook does not change that relationship.  Disclaimers should be displayed prominently and be sufficiently specific.  The disclaimers should also be able to draw attention to a reasonable person.  Lastly, the disclaimer should explicitly reserve the right of employers to change the policies at any time, with or without prior notice.
   
2. Anti-Harassment Policies -  The Supreme Court decisions of nearly a decade ago told employers two important lessons: a well drafted policy and well-drafted complaint procedures to deal with harassment issues will go a long way to reducing an employer's liability for many types of sexual harassment.  Indeed, the EEOC has suggested that employee handbooks are an excellent vehicle for notifying employees about such policies.  Thus, a review of the anti-harassment policies and procedures is a good idea to make sure they take advantage of this important defense provided by the Supreme Court.
   
3. Vacation/PTO Policies - Some employers have re-evaluated their vacation packages and other days off to avoid some of the hassles and abuses that have taken place at their companies. Some have moved to a strict "Paid Time Off", which looks less at the reasons for taking time off, and more at the overall attendance of the employee in general.  Some have also added a provision to make it clear that employees earn only a pro-rata share of the vacation time during each month, to prevent employees who leave at the beginning of the calendar year to be paid for unused vacation time for the entire year.
   
4. Electronic Communications - With the rise of the Internet and web-based e-mail, computer access and misuse have only multiplied in the last decade. Moreover, employees who use e-mail and instant messaging are prone to using it informally.   A comprehensive policy to address what conduct is appropriate will give employees some guidance into the do's and don'ts of e-mail and IM.  With Connecticut's passage of an Electronic Monitoring Act,  employees must also be notified if employers are tracking their computer systems, which may involve keystroke reviews or internet firewall tracking.  

Handbooks may not be as glamorous as addressing the "hot" issues of the day, but updating a handbook will pay dividends for years to come. With clearly marked signs for employees on how to proceed, it's less likely that one will get lost on the way. 

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