The law is already equipped to deal with these issues
By Stuart Rudner
I have been discussing the intersection between the use of technology and employment law as long as I have been practising. Initially, my discussions centred around the "misuse of email and Internet" while at work, and the primary concerns were individuals surfing inappropriate websites at work and forwarding those annoying chain emails and offensive jokes.
As time went on, technology evolved and, as I often say, evolutions in technology can increase productivity, but can also provide new and more interesting ways for employees to get themselves into trouble. The rise of the smartphone, the tablet and social media have changed the discussion dramatically and led to far more focus on off-duty conduct. In recent years, we have seen hundreds of examples of off-duty conduct that led to discipline or dismissal.
The latest evolution, which has dramatically impacted our society over the last few weeks, is Pokémon Go. This new version of the classic Nintendo game is everywhere, and you cannot walk the streets anymore without seeing people chasing Pokémon. For some (like myself), it is a curiosity. However, for many, it has taken over their lives, and intruded upon their workday. In addition to hearing stories about people wandering into traffic while chasing Pokémon, we are also hearing about people taking days off work, arriving late or spending their time at work playing. So, what is an employer to do?
As I often say, the law is already equipped to deal with these issues. "Cyberslacking" is a term I began using many years ago to describe people surfing the Internet when they should be working. Whether employees are chasing Pokémon, planning their next vacation or gathering around the water cooler to gossip during work hours (as in the old days, apparently), the issue is the same: The fundamental basis of the employment contract is an employee works and the employer pays her. If she is not working, then she is not meeting her legal obligations.
There is no need for new laws to deal with these situations. All employers should take this opportunity to check their policies and ensure that they adequately address these issues, including the fact that employees are to be actively engaged in work during their working hours and are not to use company equipment for personal reasons.
Before Pokémon, we had already noticed the increasing use of smartphones at work, and the fact that many employees think nothing of texting and talking to friends when they are supposed to be working. If your policy does not, or is too narrowly drafted, now is the time to revise it.
If employees are playing Pokémon at work, or doing anything else they should not be, employers (who presumably already have policies in place) must enforce those policies. Employees should be clearly told that their conduct is unacceptable, and warned that it will lead to discipline and, ultimately, dismissal if it does not change. Otherwise, condonation will render the policies meaningless.
That being said, employers can take this opportunity to build goodwill amongst employees and demonstrate that they can be an employer of choice by embracing the Pokémon craze, if it is popular amongst their staff, and setting up events during whee staff will be allowed to play, perhaps as a group. That way, employers can ban Pokémon Go during the workday but also provide special occasions where it is encouraged. Particularly during the summer months, this can be a good way to build employee morale.
At the end of the day, employers have the right to expect employees will be working during their scheduled working hours. They may need to be reminded that playing games, texting their friends, and all other personal business should be reserved for off-duty hours.
