Tag Archives: employees

Do employees have a right of privacy in their e-mails and text messages?

Employers Should Learn Legal Rules On Employee E-Mails And Text Messages

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.

Custome Fit EDU 2008

A Custom Fit EDU

By Don Harris

From two hours to two years, customized education programs are being offered to boost the performance and expertise of executive-level employees — and as a result improve a company’s bottom line.

Often, businesses struggle with putting the right person in the right leadership position. Even then, there might be gaps between what the person knows and needs to know. Customized programs are designed to fill those gaps.

cutome_fit_edu 2008

The focus of universities is on education, not necessarily training. There is even an executive education program that puts upper-level employees directly into community service through nonprofits as a way to help those in need and at the same time generate new skills and ideals that will benefit the employee’s own business.

Andy Atzert, assistant dean of the W. P. Carey School of Business at Arizona State University, and director of the school’s Business Center for Executive and Professional Development, says the center aids companies by expanding the knowledge and skills of managers and leaders, but doesn’t do tactical training, such as how to write a business plan.

The types of industries that utilize the center, Atzert says, include financial services, health care, technology, semiconductors, automotive, agribusiness, supply-chain services, information systems, and two major out-of-state oil companies.

“There is a demand outside Arizona for the expertise that we have,” Atzert says. “In fact, a majority of the companies are from out of state, and many of those are engaged in our online program.”

When Atzert says customized, he means customized.

“Some companies want a two-hour seminar, others want a customized MBA program that will take two years,” he says. “We deliver the program at company locations, at ASU or online.”

Because many companies have global work forces, the online option is getting increasingly popular. It’s more costly to send a person to an off-site location, not because of the travel expenses, but because of the time involved in being off the job, Atzert says.

Many of the courses offered focus on supply-chain management, which is a business discipline that has to do with how goods and services are bought and moved from one location to another.

For example, Toyota faces several supply-chain challenges in obtaining all the parts and materials needed to build an automobile. Atzert identifies questions the ASU program helps answer, such as what is needed, where does it come from, how do they buy it, how do they decide what to buy, how do they work with their designers, and what’s the best way to optimize their efforts and expenditures?

At the University of Phoenix, AZ LeaderForce is a program that pairs key business leaders with local nonprofits in a yearlong project to help improve the various organizations’ services and train those executives seeking leadership guidance.

Rodo Sofranac, University of Phoenix curriculum developer, says the program benefits businesses in a number of ways, including quality-of-life awareness, increasing leadership skills, and ethics.

“The issue is for participants in a project to take what they have learned and experienced back to their workplace and incorporate it in their personal life,” Sofranac says.

The University of Phoenix, which provides classroom facilities, produces a curriculum and donates its services for AZ LeaderForce, works with the Collaboration for a New Century, an organization formed about 10 years ago through the efforts of Phoenix Suns Chairman Jerry Colangelo. Topics covered include ethics, integrity, leadership, critical thinking skills and the social responsibility of business.

Steve Capobres, executive director of the Collaboration for a New Century, says the organization targets poverty issues and enlists the business community to work with human service agencies.


“At the same time,” Capobres says, “we have an executive leadership development program going on. We not only want their time, we want to mold them, cultivate them to become the next generation of business leaders. It’s a yearlong curriculum that takes them through the issues of what a good corporate citizen is. What does it mean to work in the community? What is your own leadership style, your ethics? It’s all about building good corporate leaders who are going to replace our older, retiring leaders.”

Among the corporate participants are Salt River Project, Bank of America, UBS Financial Services, State Farm Insurance, Lennar Homes and American Express.

“By taking people outside the world of business and putting them in the community to deal with the issue of poverty,” Capobres says, “those employees are going back to the company to be a better manager.”


AZ Business Magazine October 2008 | Previous: Big Money… | Next: At Your Service
Bad business partners

What To Do When Bad Business Partners Happen To Good People

“He is robbing you blind.” Business owners are never emotionally prepared to hear these five words, but they should be poised for action to protect their own interests and those of their companies’ when business relationships turn hostile.

Recently in Arizona, the owner of a residential property rental company found this out the hard way when she was told by a former employee that the manager of her company’s 150 properties was stealing from the company. A widow nearing retirement, she had made a series of business mistakes, including giving the manager stock in the company without proper legal documentation, as both a reward for past service and to motivate and compensate him for future work. The once loyal employee began to take control of the owner’s $25 million investment under the guise of “handling the details” of the business. He took control of the accounting software program, the company credit cards and kept details from the owner by misinforming her of the time for meetings with the company accountant. She was dumbstruck when she received the phone call from the former employee, but, on reflection, it all made sense. Her business acumen for finding deals on distressed properties and turning them into rentals had not prepared her for the complexities of dealing with a business divorce. As a business owner you need to protect yourself. The following provides some tips you should keep in mind if you believe a business divorce is imminent.

Gain Control
When there is a shift in the business relationship, as owner your first step should be to get back your position of power. You will need to separate yourself immediately from the person causing the conflict in your business. In this case, the property owner fired the manager, changed the locks on the doors, cancelled credit cards and changed passwords to all the computer systems. You will need to take this even further to protect your intellectual property and files. Talk to your IT and file room staff about securing access and tracking of information and control of passwords.

If you are fortunate enough to have your company running well today, this is the perfect time to make sure confidentiality policies are in place and have a lawyer review your company documents. It makes more sense to manage risk and resolve conflicts before they start to touch your bottom line.

Stop Talking
It is tempting to unload your frustrations on your accountant, your tax advisor, other employees and even your next door neighbor. But the truth is those comments could come back to cost you money, leverage and possibly your business reputation. While there are some exceptions, as a general rule, conversations you have with someone, other than your lawyer, can be used in court. Make your attorney your sounding board, confidant, champion and warrior. What you tell your attorney is protected by attorney-client privilege. It is the bedrock of your right to have effective counsel; without it, lawyers could not effectively represent their clients.

Keep Original Documents
This property owner had a bad habit of giving away original documents. When it came time to organize her case, this made the task even more challenging for attorneys, expert witnesses and even business advisers. Making a copy of a document is fine, but make sure you keep the original. Be sure to maintain the integrity of original documents by keeping them free of extraneous handwritten notes. If you write on these documents, you may make your case more difficult. If you want to make a note about a business matter, grab a Post It note.

Hire a Lawyer
You may know your business, but your expertise is in the company, not the law. A good lawyer needs to be the captain of your ship as you navigate a business divorce. Your lawyer may recommend a business adviser to get your company back on track. While this is a “divorce” of sorts, it isn’t the job for a family law attorney; you need an experienced business attorney who has dealt with breakups in the business arena. Get referrals through people you know in the business community, professional organizations or your local bar association. Do not be afraid to ask a lawyer if he/she has ever done this type of work. In some cases, a team of lawyers may be necessary. You may need experience in several different areas to get the matter resolved.

Turning the Tide
How did the widowed property owner fare with her business on shaky ground and her future retirement threatened? Through a mediation process, she was able to regain control of her company and tocarve her co-owner out of the business. The woman is now back in a take-charge position, buying and managing properties. Most importantly, her future is in a more secure place.

Like a marital divorce, a business divorce is never easy but, once resolved, you’ll be able to run the company instead of letting bad employees or unsuitable business partners run you.

Leon Silver and Dan Garrison are shareholders at the law firm of Shughart Thomson & Kilroy. They lead the firm’s Business Divorce team. They can be reached at 602-650-2000.