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Login Code of Conduct Found Not Binding
SurturZ writes "The Industrial Relations Commission of New South Wales, Australia, has ordered a company to reinstate an employee who downloaded porn onto a work laptop, even though it was in contravention of his workplace's code of conduct.
From the article:
the IRC said there was an 'air of automatically' about the annual signing off of employees on NCR's code of conduct, 'a degree of mechanical, unthinking routine in employees making a commitment to abide by the code.'" So, I think most of us can agree, porn at work == bad, but recognition that Click EULAs/other agreements are not binding is probably good. The question is — what replaces them?
I've violate TOS & EULAs like Michael Jackson at a daycare center.
I'm not too worried about the click through TOS/EULA being used against me in a court of law. For you see, I was installing Warcraft and then the phone rang and I got up to answer it. Meanwhile my cat walked across the keyboard that was unattended and when I came back, the game was ready to play.
What's that? You have multiple screens that prompt me everytime a new patch comes out? Well, I guess I should remind you that my keyboard is laced with catnip & I have many cats which are very active animals.
Either way, I certainly never read or understood the TOS/EULA so how could I violate it?
My work here is dung.
what replaces them
common sense ? reason ?
I am putting myself to the fullest possible use, which is all I can think that any conscious entity can ever hope to do.
Porn at work == bad? Will the erosion of job satisfaction never end? What next? No more booze in the server room?
What replaces them? I dunno, when I started my job I was given the employee handbook, and time to read it. It's not long. It just says "company equipment is provided to you to do your work, and within the discression of your supervisors should only be used for such." Then it has a short paragraph about sexual harassment policy. Not a big long list of verbotens, just an understanding that (a) the primary purpose of company owned equipment is work, not personal use (though some personal use is of course OK), and (b) you must respect your fellow employees and not do stupid stuff that intimidates, harasses, offends, etc.
Creating a 5 page policy that nobody's going to read isn't really required.
It sounds like the problem wasn't just the "oh, another form to sign" nature of the code of conduct, it was the company's behavior. Remember, the IRC said outright that, despite the company claiming a "no tolerance" policy, they didn't act like one existed up until they had to terminate this guy. Likely they, like most companies, didn't actually police the code of conduct, they just let employees do anything at all until the company finally stumbled on something bad, and then and only then did the code of conduct come up. The solution the court's looking for, I suspect, is for the company to actually routinely police the code of conduct, regularly look at employees to see whether they're following it, warn those that're starting to push the borderline and generally act like the company cares about the code of conduct before it gets to a termination situation.
Slightly OT, but does anyone else from the BBS scene in the 1980s remember the login screens nervous sysops used to use, with disclaimers like "no police are allowed on this board, if you login that means you're not allowed to nark on me k?" Those were funny. I remember reading an interview with a cop who as a hobby collected printouts of those screens encountered during the course of investigations.
Slashdot Burying Stories About Slashdot Media Owned
Having read the article, it sounds to me that he got in trouble for downloading porn on the laptop issued to him by work, not necessarily at work. I know several people who have laptops assigned to them by their employers that they take everywhere - some don't even have their own computer at home. My guess is that he was using the laptop to download porn off the clock (possibly at home), but when word got out, the employer sacked him for misusing their laptop. I'm not going into whether or not he should have been doing this, or whether the employer had a right to fire him, I'm just stating that it doesn't sound to me like he was downloading porn at work.
I'm not sure TOS/EULA was ever really binding. Couldn't someone just claim ignorance.
In contracts of this type, the law isn't concerned about you per se. The test is whether a reasonable person in your circumstance would have seen and understood the terms of the contract.
Read the EFF's Fair Use FAQ
"Are there other computer programmers out there who don't have internet access at work?"
Due to an incompotent network supervisor's actions, we inadvertantly lost 90% of internet access. He basicly put the entire organization behind the filtering tools most limited filter. One of the sites cut off was Google...
Complete work shutdown. Us developers complained, nothing happened. 20 minutes later the Officers from the company started walking in wonder why they couldn't get out. It wasn't until the 3rd officer came in that he finally got spurred into action. It turns out that the denied message included words like "control" and "disallowed". Nothing like a balding man in a thousand dollar suit shouting obscenities to motivate the incompotent.
The solution was great though. The moron shut down the entire web access filter and logging system. One of my buddies over on the network side of the house was in the process of testing the filter when it was taken down. It was one of those 'oh crap' moments when Penthouse.com actually came up!
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
the IRC said there was an 'air of automatically' about the annual signing off of employees on NCR's code of conduct, 'a degree of mechanical, unthinking routine in employees making a commitment to abide by the code.'"
So, I think most of us can agree, porn at work == bad, but recognition that Click EULAs/other agreements are not binding is probably good. The question is -- what replaces them?
How about the things that contracts are always supposed to have: consideration and negotiability. When one side has a team of lawyers and the other is intended to blindly accept the agreement, it is not the basis for good contract law. In the US, it's not even supposed to be valid. In the States, a contract is supposed to require consideration (something exchanged for the rights either side is giving up) and negotiability (the ability to discuss and request alteration of specific terms of the contract).
Beyond the fact that EULA's, AUP's, and employment agreements are rarely negotiable, the negotiability idea implies that both sides must have similar levels of legal understanding or representation. US businesses have been pushing the boundaries on this for years for many reasons, not the least of which is that it enables the side with more laywers to abuse the other side. For a simple example, look at the record industry.
While the law may not uphold the idea of similar representation, it should be obvious to any rational being that enforcing contracts formed without similar representation is bad for society. It cannot help but lead to the abuses we see today. In fact, there are many places in the States where certain contracts cannot be entered without both parties having legal representation - for example home sales in Connecticut (and I'm sure many states). While I don't much care for the idea of giving more money to lawyers, any system of civil law must eventually devolve to a state where lawyers are required for all human interaction of any consequence. This is the situation the US (and much of the world) finds itself in today. As such, one side having lawyers and the other not leads to an inherently tilted playing field. Given also that the world's predominate economic system (the free market) requires a level playing field, it should be apparent that disproportionate representation is an inherently bad idea.
How was that for rambling?
Stop-Prism.org: Opt Out of Surveillance
So, i saw the title "Login Code of Conduct Found Not Binding" and thought maybe, just maybe, it'd be an interesting article on coding on this news for nerds site. Instead, i find someone who agreed to something and subsequently broke that agreement, and was praised for it. This is very disappointing.
Stories like this belong on Digg where popularity is high and maturity is low. Can't we have some real stories here, where maturity is high, and popularity is low?
Have you read my journal today?