Use and Abuse of Computers
USE AND ABUSE OF COMPUTERS IN THE WORKPLACE by Bob Gregg Boardman & Clark LLP
One South Pinckney Street, 4th Floor P. O. Box 927 Madison, WI 53701-0927 Telephone (608) 283-1751 rgregg@boardmanclark.com
Our major form of workplace communication is becoming electronic. People do not have faceto-face, oral conversations. Email is taking over. It is fast, efficient—and dangerous. Employees just rip off an email with far less thought or editing than a letter. The e-system has replaced the break room for office gossip, harassment, betting, romantic advances and a myriad of other forms of indiscretion or illegality. Yet, when the employer imposes rules or monitoring, employees resist, or sue, over invasion of personal use of “their” computer. Further, e-discovery and public record requests are eroding the concept of personal use in favor of the “right to know.” E-DISCOVERY IN LITIGATION This is not an article on discovery. Electronic discovery is a huge and growing issue. E-discovery deserves mention, though, because it is a driving force in changing employers’ computer policies and practices. It used to be privacy cases and harassment claims which were the impetus in workplace computer practices. Now, electronic discovery concerns are becoming the driving force. Employers lose cases and are sanctioned by the courts because they did not preserve email. A sanction of $175,000 was imposed for deleting emails after the company should have been on notice of a potential claim (legal counsel, HR and IT failed to effectively communicate). Zubulake v. UBS Warburg LLC, 217 FRD 309 (S.D. NY, 2003). The defendant may have to bear the full cost of retrieval and restoration of improperly deleted electronic records. [$236,000 in
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BOB GREGG is a partner with Boardman & Clark LLP, Madison, Wisconsin. He has over 30 years of experience in the area of employment relations and has conducted over 2,000 seminars on employment law. Bob litigates
One South Pinckney Street, 4th Floor P. O. Box 927 Madison, WI 53701-0927 Telephone (608) 283-1751 rgregg@boardmanclark.com
Our major form of workplace communication is becoming electronic. People do not have faceto-face, oral conversations. Email is taking over. It is fast, efficient—and dangerous. Employees just rip off an email with far less thought or editing than a letter. The e-system has replaced the break room for office gossip, harassment, betting, romantic advances and a myriad of other forms of indiscretion or illegality. Yet, when the employer imposes rules or monitoring, employees resist, or sue, over invasion of personal use of “their” computer. Further, e-discovery and public record requests are eroding the concept of personal use in favor of the “right to know.” E-DISCOVERY IN LITIGATION This is not an article on discovery. Electronic discovery is a huge and growing issue. E-discovery deserves mention, though, because it is a driving force in changing employers’ computer policies and practices. It used to be privacy cases and harassment claims which were the impetus in workplace computer practices. Now, electronic discovery concerns are becoming the driving force. Employers lose cases and are sanctioned by the courts because they did not preserve email. A sanction of $175,000 was imposed for deleting emails after the company should have been on notice of a potential claim (legal counsel, HR and IT failed to effectively communicate). Zubulake v. UBS Warburg LLC, 217 FRD 309 (S.D. NY, 2003). The defendant may have to bear the full cost of retrieval and restoration of improperly deleted electronic records. [$236,000 in
________________________________
BOB GREGG is a partner with Boardman & Clark LLP, Madison, Wisconsin. He has over 30 years of experience in the area of employment relations and has conducted over 2,000 seminars on employment law. Bob litigates