Login Code of Conduct Found Not Binding 276
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 Scoff at the TOS/EULA (Score:5, Funny)
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?
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I think for it to be effective it would have to prompt the user every time the application was used, and then comes the question, is it legally binding without being notarized? Without witnesses? Could someone who is illiterate not use the software because they can't read the terms? How would they know? Does the software need to read terms
That's not how it works (Score:3, Interesting)
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.
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Re:I Scoff at the TOS/EULA (Score:5, Interesting)
I bought a game, which didnt work at all. It was Unreal 2 (yeah, quit yer hissing). Damn thing failed on playing, and the patches did the same.
Wal-mart refused to take it back, because it's "Software".
I took Wal-mart to small claims for refusing to take back defective software. Total was 150$ (50 for game and the rest for fees and pain).
After Terry Law (manager of this wal-mart) showed up, they said I was returning it so I would get a free game. I demonstrated with a laptop that it just didnt run. And I also showed the judge thepiratebay.com and said "if I wanted it free, I wouldnt have even went to wal-mart.".
I gave the game back in the judges presence, and got a check in 150$
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My own anecdote --- I put the last copy of Fear Effect: Retro Helix on layaway at the local Mall-Wart. A month later I picked it up, took it home and noticed the tabs had broken off and scuffed up the discs something terrible. I took it back to electronics and they said I probably scuffed it up myself, and
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You really dont need a lawyer, or good law experience for that matter. All you really need is hard evidence and a witness if they apply.
Having a decent judge also matters too. There's some real crap ones.
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Then again we are talking about Walmart...
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The game would crash the computer at a black screen, then show "Would you like to send a report to MS...."
It was rather a quick judgment. The game didnt work, and they wouldnt refund. I had my paperwork, and I won.
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More people should do this, and you can help this happen.
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The guy "downloaded and stored" the images over the course of several years which means he had to have signed the agreement more than once. His argument seems to be that he was singled out and that others in higher positions have done the same thing and even given him some of the images he had saved. (Totally
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Beside which, if I am
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That would also explain the bags under Boots' eyes and his extreme irritability during the day.
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what replaces them (Score:3, Insightful)
common sense ? reason ?
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Download Free Porn - Click Here To Read How!
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Next you'll be advocating personal responsibility and consequences for your actions. Let the insanity stop now!
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Why would porn at work be that bad? (Score:2, Interesting)
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That enough for ya?
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he question wasn't "why shouldn't I do it" the question was "why is it bad in the first place"
This isn't a question of who has the right to put what restrictions on who...it was a question of why the restriction exists in the first place. I happen to wonder myself.
It seems, like many things, a bad attempt to fix a problem. Yes, its a problem if people, even on break, are viewing porn in the office. There are indeed issues in the workplace with it (why there are issues is another pr
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Remember these rules aren't there to be prudish, they're there to save the companies ass when someone takes them to court.
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This was on a laptop. Who says that the pr0n was being viewed during working hours or even in the office? The laptop should be re-imaged before being given to another employee anyway.
-b.
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It could too easily be construed as proof of a "Hostile Environment" if a female employee walks in on some slob surfing pr0n.
Personally, forget the click-through stuff... what about the piece of paper that the guy had to sign before he even got his logon? I mean, WTF - any sysadmin/IT dep't with working brain cells is going to have an AUP on paper which all new employees have to sign, right? That would make it a binding contract right off...
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If I were an IT employee in that case, I'd just quietly delete the pr0n, then invite the employee out to the rowdiest bar in town, give him a brief talking to, and then hope that he gets some action that's not of the playing-the-one-note-flute variety.
-b.
whoa. slow down there .... (Score:4, Funny)
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http://www.youtube.com/watch?v=7DoClztvNHw [youtube.com]
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With the heat production of modern CPUs it's possible to use them to run the stills. Say hello to moonshine! Trust me, I've done this sort of thing before. Go ahead and look into the case of any server in any respectable server room and you'll see what I'm on about. I even believe that Intel once filed for a patent on this particular cooling technique.
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Did you write code to regulate clock frequency so as to regulate temp. in order to avoid the production of methanol? Unlike masturbation, bad moonshine *can* really make you go blind!
-b.
What.... (Score:2)
In my state, Indiana, USA, we are an on-hire (well, whatever that phrase that means they can lay off for no reason). However, if anybody demands us to sign a contract later on in our job (as in after hiring, we can quit and get unemployment). A former employer did that very thing, and I quit and filed a petition with the contract I took home.
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Thanks
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>at the top would do wonders.
Why replace them at all? Why would there be such an important need for them to start with? Appearantly most every other bussiness type seems to manage quite good without any at all.
Not hard (Score:2, Insightful)
They need to police it (Score:5, Insightful)
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.
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Really?
The click-through is not the issue (Score:2)
Just because I don't automatically and unthinkingly click past some arbitrary GUI element does not free me from the respon
Actual MANAGEMENT takes its place (Score:2)
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As long as the pr0n watching is done with the office door closed and the employee is pulling his weight in the company, why should it matter to the management? The money spent for "bett
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And nobody said a word about spying. It's an honor code. If you're caught (people are caught even without spyware- behavior is what gets you noticed), you're dealt with. There's little active monitoring of online
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The rules are the rules because they are the rules. Sounds like a tautological argument if I've ever heard one. Unless someone was actually aggrieved by the "offense", why bother firing the employee. Just give him a stiff talking to.
The typical /. aversion to management is disappointing. Management is important, particularly in IT. Without it, nothing gets done, nobody gets paid.
Nothing wrong with management. I just come from a small company mind
What happens when it's a "hostile workplace"? (Score:2)
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Problem solved. No need to lose employees (which studies show it costs about 150% of the positions annual salary on average to replace someone). Nobody needs to get offended either. Hows that for thinking outside the box?
-Steve
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The UK is switching over to all-digital TV starting from 2008. What's crazy is that stores are still selling analogue-only TV sets -- and in all probability, still will be after the switchover. What's even crazier is that they haven't built in the facility to require a viewing card for some or all programmes.
If you needed a viewing card in your T
Memories (Score:3, Interesting)
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If I was to send an e-mail to any company who used EULA ot ToS like these I might be tempted to add "Little did you know, but by reading this e-mail you have agreed to never use any silly EULA ever again, also all your software must now go open source...
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Signed contracts (Score:2)
-Rick
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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 c
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-Rick
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LOL, that's what I get for posting while sick. That should be ACCEPTABLE online activity, not EXCEPTABLE online activity. My bust.
-Rick
Wait, they said what? (Score:2)
This is exactly how inane workplace policies start. Now they need to daily monitor everyone's workstation and compile a file against them to prove they knowingly and repeatedly violated the Code of Conduct before they fire them. Say goodbye to any privacy those employees had AT ALL.
Yes, I realize that I have no privacy at
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Contracts (Score:2)
If that isnt enforceable, then nothing in the world is and its a free-for-all.
work laptop != at work (Score:4, Informative)
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What he *was* was stupid. He should have booted from a Knoppix LiveCD before engaging in ... questionable ... activity. After you shut down, the
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The funny part was that the team bought a couple of video games once in a while and installed them on request on those laptops to fight conference/hotel room boredom, diferent place, diferent rules...
(The team members were also asked on which DVD they wanted to test the encoders and they eventually had a very good
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The critical question, though, is how did it get out? Did he mention it in passing, or did somebody walk by and see it? If they saw it, wouldn't that imply that he had it up at work? (the porn, I mean...)
Puritanism == bad (Score:2)
If the laptop was his and his alone to use, then why is it a bad thing (or a good thing)? Especially if there's spyware and virus protection on the computer and he doesn't catch anything bad. As far as data, there should be a corporate data directory that's autosynched to the company servers regularly, whenever he's connected to the company net or VPN. The laptop should be wiped before being given to the next employee anyway, as a matter of policy, i
What will be required? (Score:2)
Were the non-binding nature of an "automatic" or "mechanical" signature process be appplied to US Law, there are a whole slew of disclosures (especially in real est
People don't know because they don't read.... (Score:2)
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obvious replacement (Score:2)
Something shorter that can actually be read in less than an hour or some crap.
The real question is whether the company should be held liable for how much software companies (ie - someone else) have diluted the value of license agreements.
yes yes yes yes yes accept accept accept.
what will replace them? (Score:2)
Obvious solution (Score:2)
Rather obvious I'd say, a decent employer (line management and HR) has regular, at least annual, meetings with it's staff.
These can be called assessments or reviews or whatever, a planning for the coming period/year should be part of them.
And that's where a code of conduct should be discussed (or even signed when minimal trust is a problem).
You must be... (Score:2)
You must be new here.
Replacements? Laws and signed contracts (Score:2)
For consumer-grade shrink-wrapped products and many business products:
State and federal laws to legitimize most or all common features of shrink-wrap licenses, particularly limits on copying and arbitration clauses.
For custom software, high-end business software, and the like:
Signed contracts. On paper. With initials next to every major item.
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Been tried. See UCITA. Consumer outrage killed it in all but 2 states.
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That's done all the time anyway with custom software.
-b.
The perfect solution (Score:2)
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I wonder whether we shoud start going into our local computer shops and ask if we can rea
Lightspeed ..... (Score:2)
Man Fired for NOT having porn on his computer.
Consideration & Negotiability? (Score:5, Interesting)
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?
Employees must get creative (Score:2)
Or the courts could simply recognize the right of employers to fire someone who breaks obvious rules.
Porn at work = Bad? (Score:2)
Contract . . . (Score:2)
What is porn? (Score:2)
pr0n?
What replaces them - employment contracts. (Score:2)
Any employee who refuses to sign a contract that prohibits porn at work i
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When the company says, "sign this or you're fired," then you're signing under duress. They are threatening you with loss of income, and perhaps loss of housing or spousing.
That's the point - if the contract says stuff like, "as a condition of employment, you gotta sign" then it's not a valid agreement. (This depends on your jurisdiction, of course.)
The guy should wank at home, though. Who would want to use his office / chair next? Yuck.
Moo (Score:2)
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?
'air of automatically' (Score:2)
In the early days of NCR (Score:2)
Reading /. at work (Score:2)
Then again, I'm not an American, so there is probably some cultural nuances I miss.
Disagreed (Score:2)
I don't agree to that.
If the statement is expanded to something like "many workplaces have policies in place prohibiting the download of porn", then I'd think it a true statement. I'd even accept "porn is a controversial thing, and many people don't want exposure to it". But stated as is, it too easily implies an immoral component to the act of downloading per se, which I feel obligated to reject.
How ironic that the ./ editor's comments for a
Machine-readable? (Score:2)
http://www.javacoolsoftware.com/eulalyzer.html [javacoolsoftware.com]
"EULAs"? (Score:2)
> probably good.
I see no mention of "clicking" or "EULAs" in the article.
Somebody mod this AC up (Score:2)
I say replace them with nothing (or, at the worst, a "statement").
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You misspelt "NSFW".
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Re:Can we have some more sensible intros (Score:2)
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