Does Your Email Policy Discriminate Against Protected Activity?

July 3rd, 2014

Leonard A. Bellavia, Esq.

Senior Partner, Bellavia Blatt, PC

We have embraced email as an effective tool for communicating with friends, family, and business associates. We send and receive emails from a host of platforms, including desktop computers, laptops, tablets, and smartphones, which results in a state of constant connection with one another.  The speed in which one can type and send emails has created new problems for businesses.  With a few keystrokes, an employee can send something inappropriate (text, video, audio, photography, etc.) to a colleague or customer.  Inappropriate material that “goes viral” can cause significant harm to the employer’s reputation.  To address these concerns, employers include policies regarding email use in their employee handbooks.  In trying to eliminate troublesome communications, businesses may inadvertently violate federal employment and labor laws.

The National Labor Relations Board (“NLRB”) is tasked with enforcing, among other laws, the National Labor Relations Act (“NLRA”).  The NLRA protects conduct of both union and nonunion employees in furtherance of their “mutual aid or protection.”  The NLRB has generally interpreted the NLRA to prohibit employers from restricting employees’ communication with one another regarding management, working conditions, or safety.  Employers may, however, restrict employees’ use of technology to communicate information not related to work.  This “safe harbor,” however, disappears quickly if employers allow employees to use email to spread even the most mundane information, like birth announcements, jokes, lost and found property, or solicitation for fundraising.  In several cases, the NLRB relied on the employer permitting communications not relating to working conditions, such as using email to communicate birth announcements and lost and found property, to allow NLRA claims to proceed.

When developing your email policy, remember to avoid language that otherwise restricts rights afforded employees under the NLRA and other laws.  No matter how strong the language in your policy is, lax enforcement may render it effectively meaningless, so determine how you will monitor content not related to work and what disciplinary steps you will take.  Remember that employees may claim discrimination if you choose to enforce your policies in case of some, but not all, of your employees.  Your policies should address your employees’ use of business email, and equipment such as company-issued smartphones, tablets, or computers, to communicate information not related to work.  Also consider the impact this policy has on other compliance efforts, such as the Safeguards Rule and Red Flags Rule, and integrate them where appropriate.

Please give us a call at 516-873-3000 so that our firm can help you create appropriate policies that address issues your company faces as well as minimize claims that these policies violate state or federal law.

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