WORKPLACE LAW - On Line Surfer
Question:
I saw a recent headline saying that an employee was fired for surfing on the Internet while at work. Can an employer really fire you for going on-line during work hours? Pretty much everyone I work with uses the Internet for non-work related stuff. I myself do my banking on-line, and sometimes shop for things on the Internet while I’m at work. Can my boss fire me for this?
Answer:
The headline you are referring to involved a New York Department of Education employee who was terminated for, among other things, unauthorized personal use of the Internet during work hours. Interestingly, the termination came on the heels of an Administrative Law Judge’s determination that the employee’s computer use had caused only “minor” adverse consequences, and his recommendation that the employee should be disciplined rather than terminated.
Toquir Choudri, an education analyst, was charged with misconduct that included disobeying an order to cease using the Internet for personal business. Choudri’s supervisors claimed that he was arrogant and disrespectful, and that he continued to violate departmental computer policies even after being warned on multiple occasions.
In his decision, the Administrative Law Judge (or “ALJ”) pointed out that Choudri had completed all of his assignments, and that there was no proof of Choudri ever being criticized for poor productivity or for not completing his work. The ALJ then stated that “…the Internet has become the modern equivalent of a telephone or a daily newspaper, providing a combination of communication and information that most employees use as frequently in their personal lives as for their work. For this reason, City agencies permit workers to use a telephone for personal calls, so long as this does not interfere with their overall work performance. Many agencies apply the same standard to the use of the Internet for personal issues.”
Based on the foregoing, the ALJ recommended that Choudri receive a reprimand, the most minor penalty available under the Civil Service law. Despite that recommendation, Choudri was terminated by the Department of Education because it felt that his “abuse of the Internet” when he was supposed to be working demonstrated his “disinterest in the job.”
The Choudri case is somewhat unusual because it seems to stand for two seemingly contradictory propositions, namely that an employer can terminate an employee for violation of its computer use policy, but also that periodic and minimal Internet use for personal reasons may be considered acceptable in today’s workplace, even if the employer objects.
On the one hand, the decision supports an employer’s right to regulate its employees’ access to the Internet, i.e., to restrict access to work-related websites only. A recent survey by America Online and Salary.com found that the average worker admits to wasting 2.09 hours per 8-hour workday, and that 44.7% of those surveyed reported Internet surfing as their number one distraction at work. To prevent loss of productivity, many employers therefore maintain comprehensive policies setting forth permissible computer and Internet use, as well as the potential for discipline and/or termination if those policies are violated. These policies are typically found in the employee handbook or manual. If your employer has such a policy in place, it can discipline or terminate you for violating that policy.
On the other hand, the language of the Choudri decision certainly indicates that Internet access/usage is common in the workplace, for both work-related and personal reasons, and that the tolerance for periodic personal use may be increasing. This increased tolerance may provide yet another reason for employers to implement a comprehensive computer policy, which should clearly address what Internet use, if any, is acceptable during work hours.
The bottom line is that it is up to an employer to determine what type
of computer and Internet use is acceptable, and to educate its employees
as to those guidelines and restrictions. Once defined, it is up to the
individual employee to comply with his/her employer’s policy, or
to face the consequences of potential discipline and/or termination as
a result of noncompliance.
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