By: Jonathan Weis
With the increasing prevalence of employees’ use of social and other electronic media, crafting appropriately narrow internal policies and employee handbook provisions to address the myriad issues that arise in connection with employees’ use of electronic media is vital.
Technology used to create e-mail was developed in the 1960s. Commercial use of e-mail began in the 1980s. Today, many employees spend a significant portion of their workday reading and sending e-mail, and the line between appropriate monitoring of employee activities and violating an employee’s right to privacy (or other employee rights) is not always clear.
It is widely accepted that employees should not have reasonable expectations of privacy when working on an employer’s computer since company computer systems are owned and/or provided by the company for the purpose of conducting company business. Many companies monitor employee e-mail and Internet activity, in part because employers are often liable for their employees’ actions. Even so, employers must be careful as they enforce their e-mail communications policies.
Generally speaking, the National Labor Relations Act (NLRA) protects non-governmental employees engaged in activities to influence change in the workplace (so called “protected concerted activity”) – even if those employees are not union members and the activity has no connection to union activity or a labor union. Thus, the NLRA protects the rights of all private sector employees to join together, with or without a union, to improve their wages and working conditions.
Over the past few years, the General Counsel of the NLRB has issued complaints against employers that have discriminatorily enforced otherwise valid communication policies. In one case, the NLRB issued a complaint against a distribution company that had in place a rule prohibiting all non-business e-mail communications. However, the employer failed to consistently enforce the rule, allowing non-business e-mail and only disciplining employees when they used e-mail for union solicitations. More recently, the NLRB found that an employer selectively enforced its electronic communications policy in a case where it terminated an employee who e-mailed a petition to the company’s Board of Directors. The petition sought development of a method for employees to directly submit workplace concerns. The evidence in this case showed, contrary to the policy, that the employer’s e-mail policy permitted reasonable personal use of the company’s e-mail system and that employees frequently used their computers for personal purposes. Thus, the employer’s claim that the employee had improperly used its e-mail proved to be a losing argument.
While these few examples of e-mail policy enforcement issues may appear to only apply to unionized companies, this issue may also affect non-unionized companies.
As many are aware, the NLRB has also dealt several blows to employers in recent years regarding employer social media policies and how such policies violated employees’ rights to “concerted activity.” In June of this year, however, in a ‘win’ for an employer, an administrative law judge (ALJ) considered the legality of a restaurant chain’s social media policy which provided that employees not post information regarding the company, their jobs or other employees which could lead to morale issues in the workplace or detrimentally affect the company’s business. The policy also urged employees to make clear that the views they post were the employee’s personal views and not the company’s and requested that employees put a disclaimer on their social media pages stating that the views expressed were the employee’s alone and not the views of the employer. The policy also stated that no employee could use any words, logos or other marks that would infringe upon the intellectual property rights of the company. The ALJ in this case found that the policy when read in its entirety did not forbid employees from engaging in rights protected by the NLRA, but only urged them to be considerate of and civil toward others when putting such items on the Internet. The ALJ also interpreted provisions of the rule precluding use of the company logo in a manner that infringed on the company’s intellectual property rights as simply protecting the company’s legal rights concerning its logo, and did not implicate the employees’ rights under the NLRA.
Workplace policies regarding non-disparagement and confidentiality have also recently come under attack. For example, an employee of Quicken Loans signed an employment contract with broad confidentiality and non-disparagement provisions wherein she agreed to hold “in the strictest of confidence” any “nonpublic information relating to or regarding the company’s business, personnel, operations or affairs.” She also agreed not to “publicly criticize, ridicule, disparage or defame the company or its products, services, policies, directors, officers, shareholders or employees” in “any written or oral statement or image” including emails or social media posting. After leaving Quicken Loans for a competitor, Quicken Loans sued its former employee for allegedly violating certain provisions of her employment contract. The employee filed charges with the NLRB, and the NLRB upheld an administrative law judge’s ruling that Quicken Loans’ confidentiality clause violated the NLRA by restricting employees from discussing compensation or job conditions with co-workers or union organizers. The NLRB also rescinded the non-disparagement provision finding that “within certain limits, employees are allowed to criticize their employer and its products” as part of their rights under the NLRA. Similarly, employer policies that prohibit employees from complaining to the media or requiring employees to obtain permission from management prior to speaking with reporters are unlikely to withstand legal scrutiny.
The prevalent use of technology in the workplace and increased scrutiny by the NLRB on all employees’ rights to engage in protected concerted activity dictates that every employer have policies in place which set forth appropriate and enforceable rules with respect to employees’ use of company’s computer systems, e-mail and the Internet. It is important to review technology and communication policies periodically, adapt the policies so they evolve as technology changes and consistently enforce the policies.
If you have any questions regarding your employment policies and social media, please contact:
Jonathan M. Weis at:
(312) 368-0100 or firstname.lastname@example.org.