Technology used to create e-mail was developed in the 1960s. Commercial use of e-mail began in the 1980s. Today, commercial and personal use of e-mail is prevalent, and many employees spend a significant portion of their workday reading and sending e-mail. Employees’ heavy use of e-mail in the workplace has opened a “Pandora’s Box” of issues which employers must face, 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 conducting the company’s business. Many companies monitor employee e-mail and Internet activity, in part because employers are often liable for their employees’ actions; however, it is unlikely that employers have a legal obligation to search for information about which no one has lodged a complaint. Even so, employers must be careful as they enforce their e-mail communications policies.
Generally speaking, the National Labor Relations Act protects non-governmental employees engaged in activities to influence change in the workplace – even if those employees are not union members and the activity has no connection to union activity or a labor union. This is technically known as “protected concerted activity” and must involve more than one employee. The National Labor Relations Board (the “NLRB”) has developed a series of rules regulating the permissible scope of policies employers can establish prohibiting “solicitation” in the workplace. An employer may adopt a non-discriminatory rule prohibiting “solicitation” by one employee of another employee during the working time of either employee. “Solicitation” includes various types of activities including requests for charitable donations.
The General Counsel for the NLRB recently issued a complaint against a hospital that allegedly had discriminatorily enforced a valid no-solicitation rule. The employer’s policy prohibited employees from soliciting for any purpose during work time in immediate patient care areas. However, like many employers, the hospital permitted solicitations in violation of the policy. Where the employer likely erred was its discipline of employees who engaged in labor union solicitations.
In a similar action, the NLRB issued a complaint against a distribution company that had 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.
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. 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.
The prevalent use of technology in the workplace dictates that every employer have policies in place that set forth the rules for employees’ use of the company’s computer systems, e-mail and the Internet. It is important to review the technology policies periodically, adapt the policies so they evolve as the technology changes, and consistently enforce the policies. Procedures should also be established to provide a means for monitoring employee computer activities and include disciplinary measures to be applied where the policy is violated.