Personal Digital Assistants (PDAs), such as BlackBerrys, have grown in popularity — so much so that a growing number of organizations are limiting their employees’ unrestricted use of these devices while at, or even away from, work. And there is good reason to do so, as employees are too easily confusing their privacy rights with freedom from workplace consequences.
When the PDA is provided by the employer or accessed through its network, employees should have no reasonable expectation of privacy. Therefore, where personal use is permitted, employees should concern themselves more with losing their jobs — instead of simply losing unlimited access to their PDAs:
>> Spending an inordinate amount of non-business time on your BlackBerry while at work is tantamount to theft of an employer’s time, which may amount to cause for dismissal. With work-issued BlackBerrys in hand, employees freely send thousands of text messages, open secret e-mail accounts, check Facebook, review sports scores, and flirt with friends over instant messaging. In these instances, seldom is the device being used for exclusively business purposes.
>> Criminal laws can be invoked if employees harass or intimidate coworkers via their BlackBerry or PDA. These employees can end up surfing the classifieds for a criminal defence lawyer, as well as for a new job.
>> While there haven’t been any reported Canadian lawsuits by pedestrians or motorists injured by drivers pounding away on their tiny BlackBerry keyboard while weaving across the road, there have been several in the U.S. — and it won’t be too long before these claims reach the front door of Canadian courtrooms.
>> It’s not just PDA use during working hours that can land you in my office, seeking advice. Employees who believe they cannot be disciplined for conduct outside of the workplace are profoundly mistaken, as employers maintain the legal right to discipline or dismiss for off-duty conduct. It’s not hard to imagine an inappropriate joke messaged between two colleagues at a bar winding up in the wrong person’s hands and if it does, don’t be surprised when it follows you back to your desk.
>> Rapid messages fired off from BlackBerrys tend to be less formal or thoughtful than those sent when sitting at your desk. There is a tendency to respond to or provide information in a summary fashion and in doing so, the advice provided may be poorly understood or misconstrued, exposing employees to a range of discipline, including negligence claims.
>> Text messages or PINs aren’t necessary private either. While these messages are not sent through the company’s network or server, many larger organizations have legal requirements that mandate the storage of all business communications.
So, messages intended to be private can find their way into an employer’s Inbox too.
In light of these concerns, employees should consider the following guidelines:
>> Thoroughly review and follow any workplace computer and Internet misuse policies. Also presume they will apply to your PDA.
>> Exercise caution when communicating with or providing advice to clients or colleagues.
>> Allow common sense to prevail.
Daniel A. Lublin is a Toronto employment lawyer practising exclusively in the law of wrongful dismissal. He can be reached at dan@toronto-employmentlawyer.com or through his website, www.toronto-employmentlawyer.com.
