Tuesday, January 4, 2011

Can I Be Fired for Surfing the Internet While at Work In Pennsylvania?

Last week the 11th Circuit Court of Appeals held that using an employer's computer for "non business reasons" constitutes a federal crime, if clear instruction is received from an employer not to do so. In the case United States v. Rodriguez, a Social Security Administration employee used the Social Security's database to look up personal information for "non business reasons."

In this case, the federal employee used the employer's database to look up personal information on other people.  This is clearly inappropritae behavior; but should it be a crime?  Either way, the broad language used by the 11th Circuit raises the possibility that any unauthorized use of a work computer could be prosecuted as a federal crime. 

Do I think the Attorney General would prosecute someone who used a work computer to look at ESPN.com while at work for a private company?  No.  Do I think employers will attempt to use this precedent to justify firng someone they want to get rid of?  Yes.  Do I think that an employer will use this precedent to try and establish that an employee has engaged in willful misconduct, and thereore is not entitled to unemployment compensation?  Yes.  Will it be employed as a justification for terminating an employee who can only be terminated "for cause" (which in turn, the employer will argue, justifies the termination of an employment contract, and severance and other befits provided for thereunder)?  Yes.

Almost all sophisticated companies have a written rule forbidding use of the Internet while at work for personal reasons.  Most do not fire employees for using the Internet at work for "benign" reasons such as checking out the latest news on CNN.com, or checking the latest football scores.  However, I believe that it is possible that, in the years to come, we will see more and more employers tracking the computer usage of  employees that they have targeted for termination.  This case, while not binding in Pennsylvania (the 11th Circuit deals with Alabama, Georgia and Florida), will be closely examined by attorneys for companies throughout the United States.  You can be sure that the reasoning from this decision will be utilized to support otherwise unsupportable "for cause" terminations in the future.

For an in depth analysis of the decision by the 11th Circuit, Click Here.

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