Chuck: Knowing these kinds of smoking-gun records are inevitable, I argue an employer can use technology proactively to make its e-records more benign. It can broadcast intent to be lawful and a request that adversaries come forward as early as possible. What do you think? –Ben
My response to Ben is:
Thanks for the comment. I appreciate it.
I agree with you, and advocate that employers should go even further. Because the employer is the leader at the workplace, the employer is obligated to use its technology in a proactive and benign way to protect all assets, including employees.
Specifically, as opposed to a blanket prohibition against employees using an employer’s technology for personal use, an employer might try letting employees save time and energy by using its technology to check on the kids, parents, family, friends, pets, shop, or take care of other personal needs, so long as nothing illegal or unethical is involved. This could also help to alleviate stress and increase employee productivity.
Also, regardless of HIPAA and similar laws, an employer should strive to maintain the confidentiality of employee medical records. Consequently, employees won’t have to fear using employer provided online health services (or at least minimally using such services).
Moreover, as you allude to, a company can permit its employees to anonymously (or not) alert the company to legal or ethical issues or other problems. In this way, retaliation against the complaining employee can be eliminated or at least minimized. In short, electronic devices are just another means to communicate, but they allow us to save time and money, and if used properly, could save companies money.
During my conversation with the Christine Caulfield of Law360.com, I also indicated that we’re really at the genesis of how all of this technology can help (or hurt) us. A perfect example is cell phone quality. We still suffer from dropped calls, murky sounding voices and other related problems. Eventually, these issues should be resolved. New issues will obviously arise (e.g., how many clones will each person be allowed to make of themselves, how will we regulate traffic patterns for our flying cars, and how will we prevent people from using invisibility cloaks for improper purposes. :-) ).