CHAPTER 2 FOREIGN LAW
5. A User Policy
Upon due consideration the best method to be adopted by the employer to deal with a technology based problem is to formulate an Electronic User Policy.749 A policy for using e-mail and Internet is generally seen as part of the employer‘s prerogative to control the workplace. The employer may take the first step and set up a committee involving information technology, industrial relations, human resources, and legal advisors to write a draft and then negotiate in the formulation of this policy.750
The purpose, scope, administration, and terminology of the user policy must be assessed against the background of the needs of the business, on the one hand, and the reasonable expectations of employees that the employer will respect their privacy, on the other.751 It may be open for the employer to identify specific employees such as the system controller and the system administrator to take responsibility for certain issues. Some attention may be given to defining terminology used in the policy as not all employers and employees are familiar with computers.752
748 Ibid
749 M McGregor ―The use of e- mail and Internet at Work.‖ ( 2003) 11 (3) JBL191
750 Ibid
751 Ibid
752 Ibid
159
The User Policy must be centred generally around the following considerations:753
A provision that makes some of the employees aware and reminds others that all electronic resources provided by the employer at the workplace ( including the desk top, workstation , hard drives , monitor , printers , networking facilities, telephone, fax machines, ) and which are provided for the purposes of the employees work remain , at all times , the property of the employer. 754
The electronic resources are intended to be used for work related activities. These works related activities must be consistent with the conduct that can be normally expected from employees.755
The policy must clearly indicate without any ambiguity whether the employer strictly prohibits the personal use of electronic tools by employees entirely or allows them to use it within certain limits.756
Where the policy does allow employees permission to use facilities for personal purposes such use must be regulated. The policy must encompass guidelines for personal use that provides for use that is conducted :757
responsibly, ethically, and lawfully;
that employees must consider and respect the rights of others;
they must not overuse the facilities: their use of email for private purposes, for example, must not disrupt network services for business purposes;
that in their use employees must not expose the employer to any liability;
employees must make it clear that statements outside the scope of their employment represent only their personal opinion and should not be construed as official opinion.
753 C Mischke. ―Disciplinary action and the Internet‖. (1999) 9 (5) CLL 43- 45 [see also M McGregor. ―The use of e- mail and Internet at Work.‖ ( 2003) 11 (3) JBL at 191-192
754 Ibid
755 Ibid
756 Ibid
757 Ibid
160
Employees must be informed that they should have no expectation of privacy in relation to information (files, messages, web access information) stored on computers provided by the employer. The employer must convey a clear intention or the real possibility that there will be the monitoring of online traffic, including electronic mail messages sent to other networks, users on the same network, and all access to pages on the World Wide Web. 758 An important provision in the user policy must be a clause that informs employees that their messages would be intercepted by the employer, provided that the sender of the message or information is aware of such interception.759
A provision in the policy that informs employees that access to the Internet and other electronic resources is not an absolute right and depends on the nature of the work that the employer is charged to do will go a long way towards the effort by employers to restrict or discontinue access to electronic source at any time.760
The user policy must prohibit certain practices. These would include but are not limited to the following:
viewing, storing, downloading or forwarding sexually explicit material (or sexually suggestive) or material that is, racist, harassing, intimidating or defamatory. This provision can extend also to attempts to gain access to restricted resources either inside or outside the computer network of the employer, impersonating another user, damaging or deleting files of another user, obtaining, without authorisation, the access codes and /or passwords of another user. The downloading, installing or using unlicensed software or software that the employee is not authorized to use, install or download may also be prohibited in terms of such a provision.761
The employer in order to provide for an effective a policy must be sure to provide for specific forms of abuse or types of behaviour that may be problematic. This may include providing a list of e- mail practices that are prohibited (sending unauthorized unsolicited
758 Ibid
759 Ibid
760 Ibid
761 Ibid
161
mail, commercial advertising of other businesses, mail flooding), or even excessive cross postings on Usenet newsgroups.762
In this policy , an employer can seek to address and regulate the computer conduct of the employee by including:763
a) A blanket prohibition on using any computer resource to promote any business or enterprise except the business or enterprise of the employer
b) A ban on any attempt to send an electronic message to indicate or gain support for any political party or religious party.
c) A prohibition on any form of violation of network security, including unauthorized access to, or the use of, data, systems or network, unauthorized interference with network services or equipment.
d) A restriction on any activity where the employee seeks to gain access to the Internet without running anti- virus software.
It is not unusual for an employer to include a provision that restricts access to a specific lists of websites due to content that may for instance contain sexually explicit, sexist or defamatory material.764
The drafting of a well thought out policy for the use of electronic tools in the workplace will prove to be of immense help to employers especially with regard to issues of privacy and discipline in the work place.
The policy will inform employees of what they may and may not do in relation to their workstation. It is important for the employer to communicate the provisions of this policy to the employee and in certain circumstances where necessary implement provisions through training that focuses on acceptable as well as unacceptable use of electronic tools in the workplace.765
762 Ibid
763 Ibid
764 Ibid
765 Ibid
162
The policy may be reviewed annually or at shorter intervals to adapt it to the changing needs of the business.766
This route of action would not only cut down on the risks relating to e mail, telephone and Internet abuse , but it may also result in a computer system significantly more efficient than ever before.767
766 McGregor op cit note 9 , 192
767 C Mischke. ―Dismissal for abuse of e- mail‖. (2002) 11 (6). CLL 56
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CHAPTER 8
Monitoring Devices.
Throughout the years and especially over the last century, improvements in technology have dramatically changed our expectation of privacy in the workplace.
The installation of what has become know as advanced switching technology have made it possible to dial numbers directly anywhere in the country without the assistance of an operator, who might be tempted to listen in.768 In addition to this, as the cost of telephone lines and equipment steadily dropped, the number of single – user lines increased, and consumers proved increasingly willing to pay for them. Thus, over the course of a generation, we came to expect that a telephone conversation was a private as a face- to face chat in our living room.769
To a large degree and without surprise, this expectation of privacy, with regard to phone calls has extended to the workplace. It has become a natural occurrence for any employee to pick up a telephone, and assume that no one is secretly listening in to that conversation.770 In its 2001 Annual Survey of workplace monitoring and surveillance, the American Management Association estimated that twelve percent of the major North American corporations periodically record and review telephone calls, while eight percent more monitor the amount of time that employees spend on the telephone, and check the phone numbers that have been called.771
The exercise of tracing the dialled numbers that an employee calls can be as simple as reading the monthly phone bill. A slightly more aggressive step that may be adopted is the installation of a pen register, which records every number dialled from a particular phone.772 However due to the fact
768 F S Lane. The Naked Employee. (2003). 106- 108.
769 Ibid
770 Ibid
771 Ibid
772 Ibid
164
that use of computers and telephones are closely linked, it is possible to use personal computers and software to track employee phone usage and produce detailed reports of all telephone activity.773
According to Telemate.Net, a manufacturer of telephone monitoring software, over twenty percent of all workplace calls are personal.774 The company has created a software product called Telemate (TM) Call Accounting. This product enables an employer to track all the data generated by the company‘s telecom resources. The software allows management to identify ―the calls and call patterns placed by individuals, teams, departments, and the organisation‖. 775
This software is capable of reporting on the following:776
Identify call volume, topics, destinations, sources, length, frequency and peak calling times.
Track account activity and build a marketing prospect or customer database.
Classify phone numbers to identify potential productivity distractions.
Identify inbound callers.