Articles

Self-Centered, Opportunistic Employee
by Dr. Lynne Curry

Question:
I supervise an employee who regularly "pushes the envelope" with self-centered, opportunistic behavior. He is adept at "working" his co-workers by planting seeds of worry in them about company policies and operations. He also operates according to a "do first, ask the manager second if at all" code in aspects of the job that could expose our company to problems. This highly litigious employee accuses both co-workers and managers of "being against him" because of his jealousy of those in management roles and his conflicts with the several co-workers who stand up to him.

In short, I have a problem on my hands. Because I suspect this man of pirating company materials and plotting, I’d like to get a sense of what’s going on behind the scenes. Since he lives on the computer, just finding out who he’s emailing and who’s emailing him and what records he’s keeping would help a lot. Can I read through his email? Can I read the documents he stores in his "personal" folder in Microsoft Outlook? Is it lawful for me to break through his password? Can I ask him to turn over his company Palm Pilot for the day to our office manager so she can make sure he doesn’t have inappropriate material on it?

Answer:
According to Attorney William Evans, you can take all these actions if you give your employee notice. Says Evans, "The courts recognize that employers have the right to control and monitor their employees use of company equipment. To safeguard this right, employers need to make sure their employees understand they have no ‘expectation of privacy’ in the information they store on the equipment."

Evans recommends you draft a company equipment policy that makes it clear that the computers, palm pilots and any other electronic equipment you provide your employees are company property, subject to inspection at any time. This is particularly important as an employee who password protects certain documents seems to be asserting a claim of privacy.

As a further safeguard, Evans suggests you ask each of your employees to sign a written statement acknowledging understanding of the policy. "If you don’t have a policy yet," says Evans, "advise your employee of your rights as an employer prior to reviewing his ‘personal folder’ or the Palm Pilot, thus giving him the opportunity to remove any personal information."

By clarifying your policies, giving your covert operator warning and monitoring his emails, you may realize several additional benefits. Once your employee realizes your monitoring rights, he may use the computer less for personal endeavors while on work time. According to recent polls, nearly 50% of the average employee’s Internet use at work qualifies as personal. Also, given that your employee pushes the limits, he may now use the Internet in ways that could land your company in legal hot water. By monitoring his use, you may stay ahead of trouble.

Although Evans’ answer takes care of the specific legal questions you asked, it doesn’t address the broader issue – what actions does an employer need to take when supervising a litigious, self-centered employee who works covertly?

First, the doctrine of good faith and fair dealing governs employers in Alaska. Thus, although your employee’s behavior may tempt you to become as covert as he, you need to avoid any actions a jury might later see as unfair. When you supervise a litigious employee, anything you say and do can and will be used against you.

According to attorney Chris Hyatt, "Employers who solicit memos from non-supervisors about a strained office situation, who conduct biased investigations or keep secret files of memos concerning an employee's alleged disruptive behavior, or who make it known to those in the workplace that the employer is looking for ways to get rid of the employee, may end up paying damages for wrongful discharge and intentional infliction of emotional distress." As an employer you can’t single any employee out for different treatment unless that treatment relates to clear business reasons, such as necessary discipline for the employee’s problematic behaviors.

Actions that would counter your litigious employee’s false claim of unfair treatment might include evidence that you professionally and fairly conducted performance evaluations on him as well as his co-workers and examples of how you disciplined him less harshly than you could have.

Second, you need to seriously consider how long you want to employ a self-centered, litigious, opportunistic employee. How much does it cost you to keep an employee on board who "works" his co-workers, thus lowering their morale and creating headaches for the supervisors? What risks do you take given your employee’s act first and ask the manager second if at all behavior? Clearly, you need to act – and act fairly. You can’t afford either a mistake or letting this situation drag on.