Is surfing the Web at work the same as reading the paper or chatting on the phone? A New York City judge says it is—to a degree. But despite Administrative Law Judge John Spooner’s recommendation that Toquir Choudhri, a NYC Department of Education employee, should have been given no more than a reprimand for cruising the Internet, Schools Chancellor Joel Klein fired him anyway.
It’s important to understand the particulars of the case. First of all, contrary to many media reports, Judge Spooner did not rule that employee Web surfing should be tolerated outright. However, given Choudhri’s assertion that he only surfed the Web after his work was completed or during downtime—as well as his claim that many other employees who follow similar practices were not sacked—Spooner ruled that the use was not excessive.
Klein disagreed, claiming that repeated warnings as well as other incidents of insubordination warranted Choudrhi’s termination. Choudrhi, meanwhile, avers that Klein unfairly singled him out for political reasons.
Regardless, the decision reignites the debate over employee rights and worker productivity. “Employers are caught in a Catch-22,” says Zachary Hummel, a partner at New York City-based law firm Bryan Cave LLP. “The courts say they have to monitor their employees, but if workers have downtime, under national labor laws you can’t discipline them for browsing the Internet. It’s the same thing as chatting with coworkers at the water cooler.”
And it’s unfair to expect employees to operate in a vacuum while at work. “There are certain things you need to do between the hours of 9 and 5,” says Jeremy Gruber, legal director at the National Workrights Institute in Princeton, N.J., such as checking personal e-mail or responding to a call. “To be completely cut off is frankly unreasonable and unpractical.”
However, companies do have the right—and, to some extent, the responsibility—to monitor workers’ online activities, whether they have downtime or not. Hummel cites a recent New Jersey lawsuit in which a company was held liable for a worker who distributed salacious photos of a minor over the Internet. “If courts impose a duty on employers to avoid harm to third parties, they are compelled to monitor worker activities,” he says. While Choudrhi wasn’t fired for looking at inappropriate Web sites, employers can certainly terminate workers they determine are slacking on the job.
Hummel suggests CIOs develop a clear policy that defines when and how often employees can surf the Web or perform other personal activities. “The rub is figuring out exactly what is excessive,” he says. “Clearly any personal activity that interferes with employees’ doing their work should be prohibited.” Most important: Be sure to enforce the policy uniformly throughout the organization.