Can a company purchase a competitor’s trademark as a keyword to help its Internet search results? These are murky legal waters, and contact lens distributor 1-800 Contacts has waded into them again. A frequent litigant over use of its trademarks, 1-800 Contacts just sued the Walgreen drugstore chain in federal district court in Utah. 1-800 Contacts believes consumers are confused when they run a search on variants of 1-800 contacts, and in their results they see a link for Walgreen’s website and contact lens offerings. As of today, I confirmed that Walgreen’s website appeared on the right of the screen in search results for searches under “1-800 Contacts,” and “1-800Contacts” but not under “1 800 Contacts.” When it did appear, it was as a sponsored link.
Whether 1-800 Contacts succeeds will have a lot to do with what viewers of these results think about Walgreen’s relationship to 1-800 Contacts. The law is still not settled when it comes to how trademarks work in the context of Internet search engines, but the major premise of trademark law is that it protects a company’s goodwill and brand identity against competitive confusion. Even though 1-800 Contacts has filed suit in Utah, where the governing case law is favorable and allows a claim based on purchase of a competitor’s trademark, 1-800 Contacts still has to show that consumers are being confused. If the sponsored link is the only basis for confusion, 1-800 Contacts has some problems. I suspect most Internet users are now aware of the difference between organic search results, based upon a search engine’s algorithm, and sponsored links, for which a competitor pays.
There’s another interesting twist. The Complaint implies that though Walgreen itself may have stopped purchasing 1-800 Contact’s trademarks, Walgreen has an obligation to go further and affirmatively purchase “negative keywords” to make sure that its website does not come up in searches for 1-800 Contacts. In effect, that means paying Google not to display the Walgreen’s site when someone searches on certain terms. But Walgreen does not have any control over the algorithm used by Google or other search engines. In responding to 1-800 Contact’s claim, then, it can fairly pose the question: Should a business be required to handicap itself in the market, and in the process, restrict the information that consumers have about an alternative source of products?
--Andrew Flake
Andrew B. Flake is a partner in the Litigation Group at Arnall Golden Gregory LLP (andrew.flake@agg.com). Our firm serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don't just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, www.agg.com.
Thursday, June 10, 2010
Thursday, May 13, 2010
Georgia Senate Sends Restrictive Covenant Law to the Ballot
Readers of the blog know we’ve been following the proposed change in Georgia’s restrictive covenant laws. At the close of this year’s General Assembly, the Senate took the penultimate step toward approval when it voted to send the issue to the ballot. In November, you will see on your ballot a constitutional referendum, which if approved, will enable and trigger the new law.
You will recall that right now, Georgia is one of the most difficult states in which to restrict competitive activity by former employees. The principle is written into our state constitution: any restraint on trade – and these kinds of contracts are considered restraints – are against our public policy. Frequently, what companies thought were carefully drafted agreements come before trial courts on motions to enjoin employees and are then struck down as unenforceable.
Faced with this challenge, the General Assembly proposes to exempt agreements that are consistent with the new law (House Bill 173) from the kinds of contracts that are illegal and void against public policy. Freely negotiated employment agreements designed to protect trade secrets, confidential information and customer relationships would no longer be categorized with “contracts tending to corrupt the legislation or the judiciary” or, perhaps more common “wagering contracts.”
If approved by the voters, the new law will replaces the rigid “geographic scope” test, thereby modernizing restrictive covenant enforcement. Instead of trying to define an employee’s territory based on where the employee physically has done business for the employer, the new law permits a court to accommodate not just geography, but the area where activities are actually conducted. House Bill 173 alternatively allows employers to simply list prohibited competitors instead of a prohibited geographic territory. Thus, employers and employees have more flexibility in negotiating what kinds of post-employment conduct is prohibited, and the employer does not have to worry about constantly having to update the agreement as the business relationship between the parties changes over time. At the same time, the employee is afforded more certainty in the protections negotiated in the event that the agreement has to be enforced.
The proposed definition of “employee” in the new law would extend only to executives, persons with true access to confidential information (such as research and development personnel) and persons with specifically sensitive customer information that is generated from the employee’s tenure with the employer – not every employee. In other words, House Bill 173 is targeted precisely to protect the entrusting of competitively sensitive information by the employer to the employee in exchange for the compensation and benefits attendant to the job.
Moreover, even defined “employees” subject to the new presumptions in favor of restrictive covenant agreements drafted in accordance with House Bill 173 have the legal ability to challenge particular agreements as being overbroad in fact. Unlike the current state of the law where agreements are “good” or “bad” as written and cannot be modified to balance competing interests, the new law gives the courts the ultimate ability to “blue pencil” or “modify” arguably overbroad agreements. Thus, the courts still serve as a check against an employer who has reached too far in fact, but the courts now have to account for the concerns of business as well in evaluating the scope of the restriction sought to be imposed by the employer. At present, lacking the ability to “blue pencil,” courts can only invalidate a restrictive covenant that may reach just beyond what is reasonable.
Businesses drafting restrictive covenants, and the professionals assisting them, will find additional certainty in the bill. For all kinds of prospective restrictive covenants, the Georgia Assembly included presumptions as to the duration of covenants. For covenants provided in the employment context, House Bill 173 states that a period of up to two years is presumptively reasonable. For covenants executed in other situations, the length of the permissible restriction may increase, e.g., for up to three years in a franchise or licensing context and up to five years when covenants are provided in connection with the sale of a business.
If approved by in November, the new law will apply prospectively, that is, to agreements entered after the effective date of HB 173. You can find the text of Georgia House Bill 173 at http://www.legis.ga.gov/legis/2009_10/versions/hb173_HB_173_AP_7.htm and some further discussion of its implications at http://www.agg.com/media/interior/publications/AGG_White_Paper-Georgia_House_Bill_173.pdf.
Andrew Flake is a partner in the Litigation Group at Arnall Golden Gregory LLP (andrew.flake@agg.com). Our firm serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don't just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, www.agg.com.
You will recall that right now, Georgia is one of the most difficult states in which to restrict competitive activity by former employees. The principle is written into our state constitution: any restraint on trade – and these kinds of contracts are considered restraints – are against our public policy. Frequently, what companies thought were carefully drafted agreements come before trial courts on motions to enjoin employees and are then struck down as unenforceable.
Faced with this challenge, the General Assembly proposes to exempt agreements that are consistent with the new law (House Bill 173) from the kinds of contracts that are illegal and void against public policy. Freely negotiated employment agreements designed to protect trade secrets, confidential information and customer relationships would no longer be categorized with “contracts tending to corrupt the legislation or the judiciary” or, perhaps more common “wagering contracts.”
If approved by the voters, the new law will replaces the rigid “geographic scope” test, thereby modernizing restrictive covenant enforcement. Instead of trying to define an employee’s territory based on where the employee physically has done business for the employer, the new law permits a court to accommodate not just geography, but the area where activities are actually conducted. House Bill 173 alternatively allows employers to simply list prohibited competitors instead of a prohibited geographic territory. Thus, employers and employees have more flexibility in negotiating what kinds of post-employment conduct is prohibited, and the employer does not have to worry about constantly having to update the agreement as the business relationship between the parties changes over time. At the same time, the employee is afforded more certainty in the protections negotiated in the event that the agreement has to be enforced.
The proposed definition of “employee” in the new law would extend only to executives, persons with true access to confidential information (such as research and development personnel) and persons with specifically sensitive customer information that is generated from the employee’s tenure with the employer – not every employee. In other words, House Bill 173 is targeted precisely to protect the entrusting of competitively sensitive information by the employer to the employee in exchange for the compensation and benefits attendant to the job.
Moreover, even defined “employees” subject to the new presumptions in favor of restrictive covenant agreements drafted in accordance with House Bill 173 have the legal ability to challenge particular agreements as being overbroad in fact. Unlike the current state of the law where agreements are “good” or “bad” as written and cannot be modified to balance competing interests, the new law gives the courts the ultimate ability to “blue pencil” or “modify” arguably overbroad agreements. Thus, the courts still serve as a check against an employer who has reached too far in fact, but the courts now have to account for the concerns of business as well in evaluating the scope of the restriction sought to be imposed by the employer. At present, lacking the ability to “blue pencil,” courts can only invalidate a restrictive covenant that may reach just beyond what is reasonable.
Businesses drafting restrictive covenants, and the professionals assisting them, will find additional certainty in the bill. For all kinds of prospective restrictive covenants, the Georgia Assembly included presumptions as to the duration of covenants. For covenants provided in the employment context, House Bill 173 states that a period of up to two years is presumptively reasonable. For covenants executed in other situations, the length of the permissible restriction may increase, e.g., for up to three years in a franchise or licensing context and up to five years when covenants are provided in connection with the sale of a business.
If approved by in November, the new law will apply prospectively, that is, to agreements entered after the effective date of HB 173. You can find the text of Georgia House Bill 173 at http://www.legis.ga.gov/legis/2009_10/versions/hb173_HB_173_AP_7.htm and some further discussion of its implications at http://www.agg.com/media/interior/publications/AGG_White_Paper-Georgia_House_Bill_173.pdf.
Andrew Flake is a partner in the Litigation Group at Arnall Golden Gregory LLP (andrew.flake@agg.com). Our firm serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don't just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, www.agg.com.
Thursday, May 6, 2010
Policing Your Trademark
After acquiring a trademark registration, you may feel that you have done all there needs to be done to protect the name of your company or brand. While a trademark registration affords significant protection, it is not always enough to combat trademark infringement. In certain circumstances, if enough third-parties in the marketplace begin using a mark confusingly similar to yours, your mark may be weakened and consumers may be less likely to be confused by the infringing third-party use. Hence, remaining vigilant in the marketplace and taking swift action against infringing use is an important consideration for your trademark portfolio. As discussed below, there are a couple of efficient ways to accomplish this goal.
New USPTO Applications
A relatively easy way to keep an eye on third-parties that may be infringing your mark is to periodically review new applications submitted to the United States Patent and Trademark Office (USPTO) for marks that have words or phrases similar to your registered mark. There are numerous “watch” services, including those used by this firm, that can review these applications for you and alert you when a potentially infringing trademark application is submitted to the USPTO. Depending upon the circumstances, you may then find it appropriate to oppose the trademark application through a formal USPTO proceeding and/or send a demand letter to the applicant to cease the infringing use.
Under the Radar
Often, however, it is difficult to root out third-parties infringing your mark because some entities may not seek a trademark registration or make their presence known on the Internet. These third-parties may, however, be using your mark or a confusingly similar mark in their business names or brand names. A periodic search for such businesses through various nationwide business directories and government registries (available in report form from the vendors mentioned above) can quickly identify any such third-parties, and help you investigate whether further action against those third-parties is necessary. Through your vigilance, you may discover that a business operating just a few streets away has adopted your trademark, and that it may even be luring away your customers.
Action Plan
While periodically reviewing and protecting your intellectual property portfolio may not be on the top of your list, it should be. Your trademark can be a valuable asset, and perhaps even the only thing that separates you from your competitors in the marketplace. Take the time to ensure that your trademark is not being infringed, and, if it is, be prudent and take swift action to stem any such infringement.
-- Anuj Desai, Esq.
Not If, But How
Arnall Golden Gregory, LLP has significant experience in trademark law. Do not hesitate to contact us if we can be of help to you.
Please visit our web site for more information, www.agg.com.
New USPTO Applications
A relatively easy way to keep an eye on third-parties that may be infringing your mark is to periodically review new applications submitted to the United States Patent and Trademark Office (USPTO) for marks that have words or phrases similar to your registered mark. There are numerous “watch” services, including those used by this firm, that can review these applications for you and alert you when a potentially infringing trademark application is submitted to the USPTO. Depending upon the circumstances, you may then find it appropriate to oppose the trademark application through a formal USPTO proceeding and/or send a demand letter to the applicant to cease the infringing use.
Under the Radar
Often, however, it is difficult to root out third-parties infringing your mark because some entities may not seek a trademark registration or make their presence known on the Internet. These third-parties may, however, be using your mark or a confusingly similar mark in their business names or brand names. A periodic search for such businesses through various nationwide business directories and government registries (available in report form from the vendors mentioned above) can quickly identify any such third-parties, and help you investigate whether further action against those third-parties is necessary. Through your vigilance, you may discover that a business operating just a few streets away has adopted your trademark, and that it may even be luring away your customers.
Action Plan
While periodically reviewing and protecting your intellectual property portfolio may not be on the top of your list, it should be. Your trademark can be a valuable asset, and perhaps even the only thing that separates you from your competitors in the marketplace. Take the time to ensure that your trademark is not being infringed, and, if it is, be prudent and take swift action to stem any such infringement.
-- Anuj Desai, Esq.
Not If, But How
Arnall Golden Gregory, LLP has significant experience in trademark law. Do not hesitate to contact us if we can be of help to you.
Please visit our web site for more information, www.agg.com.
Wednesday, April 7, 2010
Gene Patenting Decision: Undesirable Result or Pointless Ban?
The gene patenting case by the ACLU and patient groups against biotech company Myriad Genetics is motivated in large part by a desire to have knowledge and use of discoveries free and open to all rather than owned and locked up by single patent holders. While this attractive aspiration has caught favor with most of the public, it conflicts with market realities of biomedical assays and therapies. The reality is that most new biomedical assays and therapies would not be developed unless the developer has some assurance that their (usually large) investment in development can be compensated by profits down the line. While the facts around development of any given assay or drug are complicated and will differ, two likely scenarios illustrate why the ACLU’s anti-gene patent position will either be counterproductive to development of biomedical assays and therapies (the Undesirable Result Scenario) or will be ineffective at producing free and open use of gene discoveries (the Pointless Ban Scenario).
In the Undesirable Result Scenario, assume that patent protection on a gene is essential for an assay developer to recoup development costs. In this scenario, the developer could spend millions of dollars developing and gaining approval of an assay, but without patent protection, could not prevent competitors from swooping in and simply implementing the developer’s assay with little development costs. Undercutting the developer’s price (due to lower investment), the competitors can capture the market and keep the developer from making back their development costs. In the real world, developers that see this scenario before them will simply refrain from developing an assay when they do not have effective patent protection. This effect, repeated many times over many years will ultimately limit the development of many new assays and therapies that depend on gene patents. This is the undesirable result.
In the Pointless Ban Scenario, assume that an assay can be protected by patenting some aspect other than the gene involved. In this scenario, the developer would spend millions of dollars developing and gaining approval of an assay safe in the knowledge that it could prevent competitors from copying the developer’s assay. The developer’s assay would be protected by a non-gene patent. But then a prime goal of the gene patent ban would not be realized, since the assay would still be controlled by the patent-holding developer. Although the first scenario shows that this is a desirable result in order to promote assay development, it renders a ban on gene patenting pointless.
The gene patenting case by the ACLU and patient groups against biotech company Myriad Genetics is motivated in large part by a desire to have knowledge and use of discoveries free and open to all rather than owned and locked up by single patent holders. While this attractive aspiration has caught favor with most of the public, it conflicts with market realities of biomedical assays and therapies. The reality is that most new biomedical assays and therapies would not be developed unless the developer has some assurance that their (usually large) investment in development can be compensated by profits down the line. While the facts around development of any given assay or drug are complicated and will differ, two likely scenarios illustrate why the ACLU’s anti-gene patent position will either be counterproductive to development of biomedical assays and therapies (the Undesirable Result Scenario) or will be ineffective at producing free and open use of gene discoveries (the Pointless Ban Scenario).
In the Undesirable Result Scenario, assume that patent protection on a gene is essential for an assay developer to recoup development costs. In this scenario, the developer could spend millions of dollars developing and gaining approval of an assay, but without patent protection, could not prevent competitors from swooping in and simply implementing the developer’s assay with little development costs. Undercutting the developer’s price (due to lower investment), the competitors can capture the market and keep the developer from making back their development costs. In the real world, developers that see this scenario before them will simply refrain from developing an assay when they do not have effective patent protection. This effect, repeated many times over many years will ultimately limit the development of many new assays and therapies that depend on gene patents. This is the undesirable result.
In the Pointless Ban Scenario, assume that an assay can be protected by patenting some aspect other than the gene involved. In this scenario, the developer would spend millions of dollars developing and gaining approval of an assay safe in the knowledge that it could prevent competitors from copying the developer’s assay. The developer’s assay would be protected by a non-gene patent. But then a prime goal of the gene patent ban would not be realized, since the assay would still be controlled by the patent-holding developer. Although the first scenario shows that this is a desirable result in order to promote assay development, it renders a ban on gene patenting pointless.
Tuesday, February 16, 2010
Business and Legal Communities Supportive of Competition Law Changes
Readers of our Competition Law Blog know we've been following the progress of HB 173, sea change legislation that would make enforcement of non-competition and non-solicitation agreements easier. One of our white papers looks at some ways HB 173 would accomplish that, and in the process, help attract new business to the state. CityBiz just picked up this story, referencing the white paper and some testimony we recently offered in support of the new law. http://atlanta.citybizlist.com/yourcitybiznews/detail.aspx?id=67871.
So where does the law stand? With HB 173 signed into law last year, the legislative process is again moving forward. The Georgia legislature must first approve a constitutional amendment that would enable, and make effective, HB 173. Once both chambers approve that amendment -- and based upon a House hearing last week, there appears to be widespread support -- it goes to the ballot. In November, Georgians will then have an opportunity to vote by referendum.
We hope you'll assist in raising awareness and generating discussion about an important change to our state's competitive legal framework. For the full white paper, go to http://tinyurl.com/ybwd723.
So where does the law stand? With HB 173 signed into law last year, the legislative process is again moving forward. The Georgia legislature must first approve a constitutional amendment that would enable, and make effective, HB 173. Once both chambers approve that amendment -- and based upon a House hearing last week, there appears to be widespread support -- it goes to the ballot. In November, Georgians will then have an opportunity to vote by referendum.
We hope you'll assist in raising awareness and generating discussion about an important change to our state's competitive legal framework. For the full white paper, go to http://tinyurl.com/ybwd723.
Wednesday, January 6, 2010
Corporate Advertising: Conducting Your Own Due Diligence Is A Must
Without fail, one of the first responses from companies accused by competitors of false advertising is that “we didn’t know,” and it may well be that the advertising information came from a reputable source. But is the “innocent mistake” defense viable in false advertising litigation? Although it seems only fair that a company taking reasonable steps to verify information in its advertisements would be in the clear, federal advertising law holds companies strictly liable for false advertising. In other words, there is no good faith or innocent mistake defense to underlying liability.
We recently found a “juicy” illustration of the point. Pom Wonderful, the leading marketer of pomegranate juice, had noticed one of its smaller competitors using Pom’s own studies to market competing juice. With this competitor on the radar, Pom also noticed that the company, California-based Purely Juice, was marketing “100% pomegranate juice,” with “no added sugar.” Pom’s testing proved that claim incorrect, and after negotiation failed, Pom sued in federal court.
Purely Juice, it turns out, had been using a broker to find juice suppliers. The broker vouched for its suppliers, but, despite those assurances, the juice Purely Juice received was adulterated, so that the “100% pomegranate” and “no sugar” claims were false. Purely Juice claimed it had no idea of the adulteration, and that it took the word of its broker about the reliability of the juice supply.
Was that approach successful? Just last week, a court of appeals affirmed a trial award against Purely Juice of approximately $1.2 million in damages, disgorgement of more than $300,000 in its profits, and attorney’s fees of more than $620,000. One of the legal principles that resulted in the award is that a company is liable for false advertising regardless of its knowledge. Not only that, an officer or director is personally liable for false advertising in which she participates or that she directs, so the president of Purely Juice, also a defendant, shared in the liability.
It did not help Purely Juice that the trial court also found it “knew or should have known” about the shaky credentials and processes of its suppliers and therefore, of the adulteration. In that market, the limited supply of pomegranate juice means that many suppliers mix in other juice, and add sugar. Had the company conducted and abided by its own testing, and done better due diligence, one wonders if it could have avoided the litigation entirely.
For our own marketing teams, the lesson is clear. The advertising “buck” stops at the company’s door, and assurances from third parties about the quality or characteristics of supplied products, even from trusted suppliers or business partners, will not insulate the company from liability for false advertising. Thorough internal due diligence is a must.
--Andrew Flake
Andrew B. Flake is a partner in the Litigation Group at Arnall Golden Gregory LLP (andrew.flake@agg.com). Our firm serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don't just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, www.agg.com.
We recently found a “juicy” illustration of the point. Pom Wonderful, the leading marketer of pomegranate juice, had noticed one of its smaller competitors using Pom’s own studies to market competing juice. With this competitor on the radar, Pom also noticed that the company, California-based Purely Juice, was marketing “100% pomegranate juice,” with “no added sugar.” Pom’s testing proved that claim incorrect, and after negotiation failed, Pom sued in federal court.
Purely Juice, it turns out, had been using a broker to find juice suppliers. The broker vouched for its suppliers, but, despite those assurances, the juice Purely Juice received was adulterated, so that the “100% pomegranate” and “no sugar” claims were false. Purely Juice claimed it had no idea of the adulteration, and that it took the word of its broker about the reliability of the juice supply.
Was that approach successful? Just last week, a court of appeals affirmed a trial award against Purely Juice of approximately $1.2 million in damages, disgorgement of more than $300,000 in its profits, and attorney’s fees of more than $620,000. One of the legal principles that resulted in the award is that a company is liable for false advertising regardless of its knowledge. Not only that, an officer or director is personally liable for false advertising in which she participates or that she directs, so the president of Purely Juice, also a defendant, shared in the liability.
It did not help Purely Juice that the trial court also found it “knew or should have known” about the shaky credentials and processes of its suppliers and therefore, of the adulteration. In that market, the limited supply of pomegranate juice means that many suppliers mix in other juice, and add sugar. Had the company conducted and abided by its own testing, and done better due diligence, one wonders if it could have avoided the litigation entirely.
For our own marketing teams, the lesson is clear. The advertising “buck” stops at the company’s door, and assurances from third parties about the quality or characteristics of supplied products, even from trusted suppliers or business partners, will not insulate the company from liability for false advertising. Thorough internal due diligence is a must.
--Andrew Flake
Andrew B. Flake is a partner in the Litigation Group at Arnall Golden Gregory LLP (andrew.flake@agg.com). Our firm serves the business needs of growing public and private companies, helping clients turn legal challenges into business opportunities. We don't just tell you if something is possible, we show you how to make it happen. Please visit our website for more information, www.agg.com.
Friday, January 1, 2010
Are Private E-mails Sent From Work Privileged?
The new year brings a recent ruling by a federal court judge, which raises a question as to whether employers have full access to their employees' workplace email correspondence. In light of this decision, employers should ensure that their employee policies expressly address the parameters of personal use for workplace computers and networks.
The Decision
A federal court judge in the District of Columbia has ruled that a federal prosecutor who sent emails to his attorney using workplace computers had the right to keep those emails concealed because they were privileged. This decision is novel because courts generally rule that employees have no expectation of privacy as to personal information on workplace computers and networks. In this case, however, the judge ruled in favor of finding a right of privacy because the federal prosecutor was allowed by his employer, the Department of Justice, to use workplace computers for personal matters, creating a reasonable expectation of privacy.
What This Means For You
If a company allows employees, whether in practice or through a formal policy, to use workplace computers for personal matters, an employee may be able to successfully keep confidential email correspondence and electronic files of a personal nature in the event of a dispute. To avoid this result, companies should strive to audit their formal policies and their practical application to ensure that employees are expressly prohibited from using workplace computers for personal matters. While the decision discussed above is not binding everywhere or the majority view at the moment, it may be indicative of a trend favoring employees and their expectation of privacy.
-- Anuj Desai, Esq.
Not If, But How
Arnall Golden Gregory, LLP has significant experience in drafting and auditing human resource policies and agreements, including those concerning employee use of workplace infrastructure. Do not hesitate to contact us if we can be of help to you.
Please visit our web site for more information, www.agg.com. Also, we thank you for reading our blog and wish you a very happy new year.
The Decision
A federal court judge in the District of Columbia has ruled that a federal prosecutor who sent emails to his attorney using workplace computers had the right to keep those emails concealed because they were privileged. This decision is novel because courts generally rule that employees have no expectation of privacy as to personal information on workplace computers and networks. In this case, however, the judge ruled in favor of finding a right of privacy because the federal prosecutor was allowed by his employer, the Department of Justice, to use workplace computers for personal matters, creating a reasonable expectation of privacy.
What This Means For You
If a company allows employees, whether in practice or through a formal policy, to use workplace computers for personal matters, an employee may be able to successfully keep confidential email correspondence and electronic files of a personal nature in the event of a dispute. To avoid this result, companies should strive to audit their formal policies and their practical application to ensure that employees are expressly prohibited from using workplace computers for personal matters. While the decision discussed above is not binding everywhere or the majority view at the moment, it may be indicative of a trend favoring employees and their expectation of privacy.
-- Anuj Desai, Esq.
Not If, But How
Arnall Golden Gregory, LLP has significant experience in drafting and auditing human resource policies and agreements, including those concerning employee use of workplace infrastructure. Do not hesitate to contact us if we can be of help to you.
Please visit our web site for more information, www.agg.com. Also, we thank you for reading our blog and wish you a very happy new year.
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