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The Brave New World of e-Workplace Privacy Policies

By Robert Brownstone

Embodying some of the aspects of Big Brother is not a new role for an employer. Traditional concerns for employers have included: loss of information sensitive to the employer or to employees; harassing, discriminatory, or other conduct potentially leading to liability to third parties; forbidden fraternizing; misappropriation of trade secrets to form a competing venture; criminal activity; and “frolic and detour” or other slacking. In the past 15 years, however, workplaces have become increasingly digitized as electronic information has come to dominate all aspects of modern life. See generally, Robert D. Brownstone, Workplace Privacy Policies (Aug. 2009) (“Brownstone eWorkplace”), at 1-3, available at www.fenwick.com/docstore/publications/EIM/eWorkplace_Policies_Materials_Public_Sector_EEO_8-28-09.pdf#page=7. With the advent of Web 2.0 and User-Generated-Content (“UGC”) ' blogs, wikis and social-networking sites (such as Facebook, LinkedIn, MySpace and Twitter) ' there are heightened concerns surrounding employees' digital activity.

Part One of this article examines the potential liability for employers involved with social media and e-mail use. Part Two, next month, discusses implementing compliant and defensible workplace policies.

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