The Internet Age: Technology and the Workplace
October 1, 2008

The Internet. How can a tool that is helpful in so many ways also create such headaches for employers? What with blogs, Web-surfing, and access to all manner of inappropriate websites, the Internet can produce as many problems as it solves. Of course, the Internet is here to stay, and this author for one certainly isn't wishing for its demise.

In the workplace, the Internet has emerged as a complicated force for employers to deal with. The Internet, and particularly the e-mails that travel on it, can make employees more efficient in their day-to-day work. Unfortunately, the Internet can also increase employee inefficiency when used for non-work-related purposes. Most employers have now developed workplace policies prohibiting employees from accessing the Internet for personal reasons, and have put employees on notice that their Internet use will be monitored. It is increasingly common for employees to be terminated for accessing pornography while at work, or for simply spending significant time surfing the Web instead of working. But does that mean an employer may access an employee's personal e-mail folders and restricted personal blogs simply because the employee accesses those files while at work or on company computers?

Beyond their actions on the Internet while at work, employees' use of the Internet during their off-time can also impact job-related decisions and opportunities. The Internet can provide employers with an insight into applicants and employees. MySpace, Facebook, and even Google searches offer a wealth of information about applicants' outside interests, motivations, and personal philosophy that might predict the applicants' success or failure in the job for which they are applying. For example, an applicant who advertises that he or she is a late-night partier might not be the best candidate for a job that requires early hours and reliable attendance. On the other hand, an employer must be careful not to evaluate an applicant based upon criteria that have nothing to do with the job itself.

In Colorado, use of information gained over the Internet to make decisions about existing employees can be even more complicated. Blogging has become a way for individuals to express themselves on a variety of subjects. Newspapers are replete with stories of employees who were terminated for opinions they expressed in personal blogs. Yet the Colorado Lawful Activities Statute makes it illegal for employers to terminate employees for legal activities performed during the employee's nonworking time. Thus, an employer who discovers that its employee is involved in a controversial organization in the employee's off-time may face a difficult decision. An employer who terminates an employee for off-duty activities that have nothing to do with the employee's position could face a lawsuit if the employer elects to rely upon the information it learned to support the termination decision. On the other hand, what if the controversial organization is taking a stand against the very products or services offered by the employer? Under such circumstances, the employee's involvement in that organization could create a conflict of interest between the employee and the employer that would justify the employer's termination decision.

Practical Significance

In our increasingly technological age, a well-defined policy that informs employees as to acceptable Internet use is a must. However, notwithstanding such policies, employers must also understand that employees have private lives and private interests that cannot always come into play in making employment-related decisions.