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It happens to all of us – the pressure subsides, a few minutes of free time, lack of concentration after lunch – and our thoughts wander and with them, almost immediately, our mouse cursor also wanders, and begins to roam aimlessly on the Internet and the social networks.
Most of us do not ascribe much importance to this natural act, which is instinctive and a continuation of the wandering of our thoughts.
In most cases it is a “non-issue,” but lately employers have argued that time spent roaming the Internet should be deducted from the employees’ salary. Such arguments have been raised in counterclaims or set-off claims by employers sued by ex-employees for payments. Such arguments raise the preliminary questions of whether an employer is entitled to prohibit or restrict employees’ use of the Internet, and if so, how, and what are the consequences of the employee breaching the employer’s policy.
In my opinion, an employer cannot prohibit employees from roaming the Internet. Today, roaming the Internet is equivalent to a wandering of thought, or to a conversation with a fellow employee. Of course, engaging in such pastimes should not come instead of performance of the employee’s duties, but cannot be prohibited altogether in the workplace since they form part of the employee’s basic rights to dignity, freedom and privacy.
That is not to say that an employer cannot restrict and supervise the access to and use by an employee of the Internet for purposes unrelated to his/her employment. However, the restrictions imposed by the employer must be reasonable, and detailed in clear policy guidelines, and the employee must be notified, supervised and warned, in real time.
An employer cannot sit back and wait until sued by the employee and then, all of a sudden, raise a counterclaim or claim for offset in respect to time paid while the employee was surfing the Internet. It should be emphasized that even when the employee’s conduct is found to be in breach of a specific reasonable policy, the remedy available to the employer is not necessarily set-off of salary paid with respect to time surfing the Internet.
Such a remedy only becomes available if the employer can prove that the roaming time exceeded the reasonable short breaks to which the employee is entitled, that the employee was not available for work during such time and that this can be quantified. However, though the remedy of restitution may not be available to the employer, the employer may be entitled to take disciplinary measures.The author is partner and head of employment practice for S. Horowitz & Co.