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Workplace Solutions: Loyalty Duty

Workplace Solutions: Loyalty Duty

Question:

When I returned from lunch last week, my manager stopped me from going to my office and ordered me into the conference room. privacyWhen I asked, “What’s up?” he refused to answer, but instead brought in the human resources manager. Together they interrogated me, asking me questions that led me to realize they’d looked through my personal iPad.

I asked point blank if they had looked at my iPad and they said they weren’t answering questions, but were asking them. They said since my iPad was at work in my office, I apparently used it during the workday. I said this was an assumption, that I preferred not to leave it in my car and had full right to use it on my lunch hour. They said since I’m exempt, my lunch hour could be considered work time.

I refused to answer any other questions without an attorney present. They told me that was grounds for insubordination and placed me on indefinite, unpaid administrative leave.

When I tried to go back to my office to get my iPad, they told me I couldn’t. I insisted on taking my iPad with me as it was my property, and they gave it to me, but took my cell, keys and deleted my computer access. I’ve since learned they’ve also interviewed my coworkers and asked many disparaging questions.

I had planned to start my own company because I hadn’t felt well treated and this simply pushed my timetable forward. Could you recommend a good attorney as I plan to sue for computer trespass, privacy invasion and slander and have the last laugh as the money will help fund my new business?

Answer:

Don’t count the money yet -- at least not until you tell your attorney whether you’d engaged in planning your business or interacting with potential future clients during work hours.

According to attorney Kimberlee Colbo, “Even without a specific policy, employers can defend against ‘breach of privacy’ claims if they can show a business justification for searching a computer, tablet, desk or anything in an office.

“Your employer presumably received information that led them to search your office and electronics. If employees want to ensure their employers don’t review anything on their personal cellphone, tablet or laptop, they shouldn’t bring them to work nor use them for work-related reasons.”

Larry Sitton sued his former employer for privacy invasion and computer theft and trespass when his former manager printed emails off his personal laptop. His employer countersued for breach of the duty of loyalty.

Sitton lost at trial and paid his former employer more than $39,000 in damages. According to the court, the former employer was within its rights to investigate potential improper employee behavior even though Sitton's manager printed emails off his personal laptop.

According to another court ruling, even small amounts of employee time can violate an employee’s duty of loyalty to the company. When Cameco Inc. fired a manager for not doing all parts of his job, it learned he had a home business on which he spent 15 minutes each workday. According to the New Jersey Supreme Court, the manager’s actions amounted to a breach of the duty of loyalty.

Breaching this loyalty duty can result in high damages. When Mario Industries of Virginia Inc. sued its former manager and sales representatives for breaching their duty of loyalty, it won $1.5 million in compensatory damages and $56,700 in punitive damages.

Although the manager deleted emailsprivacy, spreadsheets and files before he left Mario’s premises, a forensic computer expert recovered the material and also found the manager encouraged two contractual sales representatives to send business to his new company.

Finally, your actions can crash your new company.

“Based on this employee's statements,” said attorney Charles Krugel, “he was up to something that undermined his employer. He has jeopardized his reputation. Those who know of his behavior should think twice about employing him, becoming his customer or even working for him.”

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Lynne Curry, Ph.D., SPHR and owner of the Alaska-based management consulting firm, The Growth Company Inc. consults with companies and individuals to create real solutions to real workplace challenges. Their services include HR On-call (a-la-carte HR), investigations, mediation, management/employee training, executive coaching, 360/employee reviews and organizational strategy services. You can reach Lynne @ www.thegrowthcompany.com, via her workplace 911/411 blog, www.workplacecoachblog.com or @lynnecurry10 on twitter.

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