Do employees have a right of privacy in their e-mails and text messages or may employers read them? May employers lawfully limit employee electronic communications? Are employees protected from retaliation for what they say in their e-mails? If so, can they lose protection if they go too far in what they say?
For several years, savvy employers wishing to monitor employee e-mails have issued policy statements to workers, putting them on notice that electronic communications they send on company equipment are subject to review by management. This notice is designed to preclude any reasonable expectation by an employee that his or her e-mails are confidential and may not be viewed by management, thereby shielding the employer from invasion of privacy claims.
A recent case from the Ninth Circuit Court of Appeals, with jurisdiction over Arizona, created quite a stir when the court concluded that an employer had invaded an employee’s privacy by reading the employee’s text messages, even though the employer had provided its employees with notice that their electronic communications were subject to monitoring by the employer. A careful look at the court’s decision, however, should dispel employer concerns.
The case doesn’t stand for the proposition that employer notice is no longer effective. A manager had undercut the employer’s policy statement when he told employees that their messages wouldn’t be reviewed as long as they paid for any monthly overage fees imposed because of excessive text messaging. When the employer was considering changing service plans because of recurring overage fees, it obtained employee text messages from the service provider to determine the extent to which non-work related messages accounted for the overages. The court concluded that employees had a reasonable expectation that the privacy of their messages would be protected because of the manager’s promise, despite the language in the official policy.
The lesson for businesses is that your employment policies are only as good as those who administer them. Managers and supervisors must be trained to properly administer your policies and not make statements inconsistent with those policies.
Employer restrictions on employee e-mail
Many employers have policies that prohibit use of their computer systems, including e-mail features, for personal communications. The difficulty with these policies lies in consistent enforcement. Non-union and union employers alike are subject to rulings by the National Labor Relations Board (NLRB), which has repeatedly held that such policies may not be enforced against employees who send e-mails pertaining to employment matters or unions if the employer does not consistently enforce its policy against other personal e-mails such as party announcements, solicitation of money for retirement or birthday gifts, offers to sell sports tickets, or sales, or others pertaining to non-business matters. Effectively policing such a policy is often a virtual impossibility.
The NLRB recently issued a new decision holding that employers may adopt policies that permit some kinds of e-mails, but not others, based on content. For example, policies may distinguish between charitable and non-charitable solicitations, offers to sell personal property (e.g., a used car) and offers to sell commercial products (e.g., Avon), and invitations to a personal party and invitations to attend an outside organization’s meeting. Distinctions, however, cannot be based on legally protected content such as complaints about wages and benefits or other terms of employment. In the new case, the NLRB held that an employer had lawfully disciplined an employee for sending e-mails that had solicited support for a union. The employer’s policy had prohibited solicitations for outside organizations, except charities, and the employer had not tolerated e-mail solicitations for other non-charitable organizations.
Employers, therefore, should consider adopting or rewriting their electronic communications policies to carefully draw the line between permitted and prohibited employee e-mails.
Protected e-mails and unlawful retaliation
The courts and the NLRB have broadly protected employee e-mails that pertain to wages, benefits and other terms and conditions of employment, even when those e-mails have criticized the employer, its officers or managers, and even when those e-mails have been addressed to customers, competitors orthe press. Employees may not be lawfully disciplined or discharged for sending such e-mails. Anotherwise protected e-mail, however, may lose its legal protection if the author attacks the employer’sproduct or service, encourages unlawful activity or otherwise crosses an often nebulous line between reasonable and unreasonable content. Note that the NLRB allows for some degree of employee indiscretion, without the loss of legal protection, because it recognizes that emotions often run high in this context.
Questions about the protected status of employee e-mails should be addressed to a competent labor attorney.
Jon E. Pettibone is chair of Quarles & Brady’s national labor and employment practice, where he advises management on labor and employment strategies. He can be reached at JEP@quarles.com.