By Kim Silvers, SPHR-CA
Several recent employment related court cases have set out the standards for employers who allow employees to use company technology resources (email, texts, voice mail, social media, etc.). In this day, everyone uses some technology and the lines between business and personal use are often blurred. An employer who does not expect or allow employees to use their company internet access during break time to check out a personal website or send an email about dinner plans is not in the real world. But employers may set standards around what is allowable and who has access. We encourage you to do so.
Given that employees’ use of company equipment for some personal communication is the norm in 2011 means that employers must be specific in noting the rules and rights around this information. In fact, the more specific the employer’s policy, the better. Courts have ruled consistently that if the employer notes that employer time and property may not be used for non-productive work, nothing is private when done on company equipment, and that the employer has access to all communication produced on company property and equipment, then the employer will likely win the battle over access.
A recent California case (Holmes v. Petrovich Development Co., LLC ) ruled in favor of the employer when the employee was emailing her attorney about a possible legal action against the employer. The court deemed that there was no “attorney client privilege” when the correspondence was sent on employer-owned equipment and email system. The employer’s strongly worded policy noted:
- that those systems were for business purposes only,
- that employees were prohibited from sending or receiving personal e-mails,
- employees had “no right of privacy” in any e-mail messages made using the Company’s computers, and
- the Company reserved the right to “inspect all files or messages . . . at any time for any reason.”
In a case before the US Supreme Court last year (City of Ontario, CA v. Quon) a police officer claimed his sexually explicit texts to his girlfriend sent on the employer’s pager were private and the employer had no right to see the texts. The US Supreme Court ruled in a unanimous decision that the City of Ontario’s review of Quon’s, and others’ text messages sent on City-issued pagers did not constitute an unreasonable search and did not violate the Fourth Amendment to the Constitution.
However, a recent charge by the National Labor Relations Board (NLRB) against American Medical Response of Connecticut Inc. was settled before it went to hearing – and it is sending shivers through the employer ranks. This case involved an employee who sent out several negative Facebook postings about her supervisor from her home computer. The NLRB and the employer settled the case before it went to hearing. Under the terms of the settlement, approved by the NLRB Regional Director, the company agreed to revise its overly-broad social media rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. Such behavior is considered “protected concerted activity” under the National Labor Relations Act (NLRA).
Although the case above is around a unionized employer and employees’ rights under the NLRA, all employers should heed caution, especially when an employee is posting unfavorable comments about the workplace on his/her personal time and computer. This is a new area and, given the makeup of the NLRB, it will likely be ruled in the employee’s favor if the comments are around any protected concerted activities – unionized or not. If you determine that an employee is taking too much liberty in expressing his or her opinions about wage, hours or working conditions, including management’s capabilities, we urge you to consult with legal counsel before taking adverse action.
Our advice to you – ensure you have a strong policy outlining the standards and expectations around employees’ use of company technology. Our retained clients have access to our most current Technology Usage Policy on our password-protected online library.