Technology Tips for Companies of all Sizes
Date of Publication: November 2003
If you are a small business or one which does not rely heavily on technology, you may think you are exempt from the “technology talk” aimed at business owners today. But if you have at least one employee, one computer or one phone, you aren’t exempt. This article focuses on three technology-related issues that affect almost all employers: (1) software licensing, (2) purchasing equipment and software, and (3) employment-related policies.
Software licensing - The concept behind software licensing is simple: you typically need one licensed copy of software per computer. The product license gives you the legal right to run or access the software. The license agreement sets forth the terms of use. When you buy a new personal computer, it typically comes with operating system software (such as Microsoft Windows®), and may also come with application programs for functions such as word processing and spreadsheet creation. When the software comes with the computer, you receive an Original Equipment Manufacturer (OEM) license. The license agreement stating the terms of the license will often appear on your screen and require you to click “I accept” the first time you use the program. You may also purchase software in a shrink-wrapped box from a retail store, an Internet retailer, and so on. The license to use this software is typically inside the box, and again, the license agreement will often display during installation. If you run the same program on multiple computers, it may be economically advantageous for you to purchase a multiple product license. If you do so, the terms of the license agreement will apply to every licensed computer.
A license may include secondary use rights, giving you permission to share the same application license on two computers. Secondary use rights can be “home-use” rights, allowing you to share the software on a home and a work PC, or may be “portable-use” rights, allowing you to share it on a desk top and a lap top. You should never assume that a software license provides secondary use rights. Microsoft, for example, offers secondary use rights on some of its products, but not others. Sharing software among computers without licensed permission to do so is a common violation of a software license agreement. Information about licensing and the license agreements is typically available on the manufacturer’s web site.
Purchasing equipment and software - Buying computers, phones, voice mail systems, email programs, copiers, faxes, and software is really no different than buying pens, desks, or any other office item. First, you need to know what you are buying. If you order 500 Acme pens with blue ink, you know you have a problem when you receive 500 Acme pens with red ink. Because purchase agreements for equipment and software are often written in language that is nearly indecipherable, you should have the vendor tell you, in plain language, how to reference items on the purchase agreement. What exactly is a 349203XYP model J and why do you need 8 of them? Make a jargon to plain English translation list so that when you want to verify delivery, request service or replace an item in your inventory, you will know that item FX239873P is a telephone handset whereas item P284IWq is a circuit card. Second, make sure you have a clear understanding of the warranty that accompanies your purchased item, including the length of the warranty and any exclusions. If the warranty includes on-site maintenance, what are the standards for responding to a maintenance call? Are you being promised service in 4 hours, 8 hours, or 4 days? Calendar the warranty expiration date and work with your vendor in advance of that date to negotiate the terms of post-warranty maintenance. If you don’t, your vendor may automatically implement a post-warranty maintenance agreement with terms that are less favorable than those you would hope to negotiate. Third, consider some type of “hold back” in your payment when making a purchase that involves installation, training and/or testing. For example, if you buy custom software and the purchase includes installation, training and 30 day post-installation trouble shooting, what leverage do you have to enforce completion of the installation or other items on your punchlist if you have paid the entire amount up front?
Key employee policies - Regardless of whether you have 2 or 200 employees, you need to protect your company from the risks associated with employee use of technology. You should have a policy governing employee use of the Internet, voice mail and email. The policy should make it clear that employees have no expectation of privacy and that you can and may monitor voice mail, incoming and outgoing email and Internet use. You need to clarify whether personal use of the phone and the computer is acceptable and if so, at what level and for what purpose. Note: Unless you really intend to prohibit all personal phone calls, emails and Internet use, don’t say that such use is prohibited. If you say no personal use but permit some use, the validity of the whole policy may be called into question. An alternative is to discuss appropriate use of the phone, email and the Internet and to indicate that while occasional, appropriate personal use may be permitted, such use may not interfere with productivity and must not violate any of your other policies including those addressing offensive behavior. You should also have some method of monitoring employees’ use of voice mail, email and the Internet. Monitoring may be very informal -- you could walk around and listen to/see what people are saying, reading, and looking at. If every time you approach an employee’s work station he “flips” his screen or halts his telephone conversation, it may be a red flag which requires further follow up. Monitoring could be somewhat more formal – you could periodically check employees’ incoming and outgoing email and Internet history. If you want to formally monitor use, you could purchase monitoring software. Many employers feel uncomfortable with the idea of monitoring employees’ phone messages, emails and Internet use. However, the risks of not monitoring such use can be substantial and include reduced productivity and the employer’s legal liability if employees are purposefully or inadvertently sharing offensive material with other employees, clients or third parties.
As this article demonstrates, many of the technology-related issues that employers deal with in the work place are nothing more than variations on general business concerns such as licensing, purchasing, and employee policies and procedures. While the tools used in today’s workplaces are different from those used 20 or ever 5 years ago, the principles of good management remain the same. At Fryberger, we have been providing businesses with sound legal advice for 110 years. We welcome your calls at 722-0861 with technology questions or any other business-related concerns.The information in this article is not intended as, and does not constitute either legal advice or a solicitation of any particular prospective client. The reader should not rely on any information contained herein regarding your specific situation until you have consulted with a qualified attorney.
