by Kim M. Tran

Fall 1997

 ¨

 I encourage employers to be innovative as they draft email policies.

Lawmakers, interest groups and courts are trying to carve out sections of existing laws and transplant them into the unique arena of cyberspace. For example, most of the recent discussion about employee email use has focused on an employee's expectation of privacy. Courts have applied the traditional bases of privacy rights from either the Constitution or common tort law in adjudicating an employee's email privacy rights. In balancing the employee's right to privacy against the employer's interest in efficiency and productivity; the employer has most often succeeded. An employer may use emails (even deleted emails) as evidence of lawful termination or employee misconduct. In general, most of the caselaw and debate indicates that employees have a diminished expectation of privacy in workplace email. Employers often develop employee handbooks to put employees on notice of company expectations and procedure.

Most legal authorities concede that employees have a diminished right to privacy in the workplace. Privacy rights are dynamic and can fluctuate with the situation. While we accept a lower expectation of privacy in the workplace; the law protects a high expectation of privacy in the home. In contrast, the rights guaranteed under the National Labor Relations Act exist only in the workplace. Any infringement on that right by the employer should be heavily scrutinized because the workplace is the most crucial place to exercise rights to self-organize, bargain collectively and participate in concerted activity.

  What some employers may be omitting from their email policy is any reference to union activity. When discussing union activity on email, the concern is no longer just privacy rights. Moreover, the rights involved are guaranteed in the National Labor Relations Act: the right to self-organize, to bargain collectively, and to participate in concerted activity. National Labor Relations Act. Questions and concerns may arise from the increased use of email by union organizers and leaders such as:

 If an employer prohibits all personal email from the workplace, is he obstructing unions and employees from asserting the rights guaranteed by the NLRA?

• If an employer is allowing some personal use of the email system, can he prevent unions from soliciting on the email system?
• Can an employee use encryption devices to prevent an employer from reading union email?
• Can a nonemployee access the employers email system to organize ?
• Do the unique qualities of email make the NLRB current adjudications, or difficult to apply?

 The National Labor Relations Board (NLRB) has answered some of these questions in the non-email world. A number of NLRB adjudications have specific rules about when and where union activity can occur in respect to the workplace. But a number of these determinations are based on definitions that are inapplicable to email. How can an employee receive email on nonworkplace areas if his only email access is his job's workstation?

 As the number of email users grow, the NLRB needs to establish cyberspecific definitions to monitor union activity by email. Employers should inform their employees about use of company equipment for union activity. The best solution may be to embrace innovative and alternative email policies. The stakes are high: the employees face termination and the employers face grievance claims.

 What's inside:

• GENERAL REVIEW OF NLRB DECISIONS
• EXPLORE LAW REVIEW ARTICLES ON THIS TOPIC
• EMPLOYEE HANDBOOKS: EMAIL POLICY AND THE NATIONAL LABOR
  RELATIONS ACT
• EMPLOYER LIABILITY RISKS ASSOCIATED WITH EMAIL
• GENERAL GUIDELINES FOR EMAIL POLICIES
• SO YOU WANT TO MONITOR YOUR EMPLOYEE'S EMAIL: CHECK OUT THESE SITES.
• UNION EMAIL IN THE WORKPLACE
• A SUGGESTION
• CONCLUSION
• FOR YOUR READING LIST

 GENERAL REVIEW OF NLRB DECISIONS

 NRLB's Treatment of Oral Solicitation vs. Written Distribution

 Inevitably, employers and the National Labor Relations Board will have to re-evaluate their respective policies towards union distribution and solicitation. The questions that remains is to what extent will the re-evaluation decrease a union's bargaining power? Throughout this explanation of NLRB's definitions, one should consider if email is a written or oral communication. In the past, the NLRB's treatment of union activity turns on whether the activity is characterized as an oral solicitation or an written distribution.

 The NLRB addressed the parameters of union activity in Republic Aviation Corp. v. NLRB 324 U.S. 739 (1945). The principle developed in Republic Aviation Corp. identified the purpose of the NLRA to "balance the undisputed right of self-organization assured to employees under the Wagner Act [NLRA] and the equally undisputed right of employers to maintain discipline in their establishments." 324 U.S. 793, 797-98 (1945). Later cases clarified the NLRB's position on union activity in the workplace, but each outcome incorporated the Republic Aviation premise. Achieving the Republic Aviation balance is challenged when an employer is permitted to prohibit personal email in the workplace, thereby banning any union activity via email.

 The NRLB distinguishes union activity as either an oral solicitation or a written distribution. Oral solicitation may occur on the business premises, but only during nonwork hours, such as lunch or breaks. Oral solicitation includes a unionized employees discussing union activity as long as the conversation is restricted to nonwork hours. The NLRB determined that time and place were key elements in effective oral solicitation. On the other hand, written distribution is limited to nonwork areas during nonwork times. Union literature may only be distributed in areas such as the parking lot, break room or the cafeteria and only during nonwork hours. The key element in written distribution is that the employee receive the material. Because the message in of items such as fliers and position papers is permanent, the NLRB reasoned that employees could save the material and read it later. How can these very specific determinations be reconciled with the nature of email? This presents yet another issue of how technology should be modified to fit into existing statutes.

 Email as written communication

 Email retains elements of both written and oral communication; but also contains its own unique elements. We will first examine how email is like written communication and then examine how email is like oral communication. The NLRB focuses on the "permanent" nature of written communication and the ability of the recipient to save the document to read at a later time. Likewise, email can be electronically saved and then read at a later time. Or, email can be printed and read at a later time, much like written communication. Like written communication posted on a bulletin board in the cafeteria lounge which can be read by a large numbers of people; a person can send out a mass email instantaneously to large numbers of people.

The major distinction between fliers (traditional written communication) and email is that email burdens the employers' equipment, computer system, and hardware. The transmission of a mass email could slow down the productivity and efficiency of the entire system. In addition to the cost shift to the employer, written communication under the NLRB standards is limited to nonwork hours and nonwork places. Theoretically, even if the employee were limited to checking email during nonwork hours, such as lunch or on breaks, an employee will most likely depend solely on the employer for email access. However, an employee whose only access to email is at work has no choice but to access email at work areas, namely at his workstation. Under current NLRB guidelines, if the courts define email as written communication, then email can be lawfully denied as a communication resource for union activity.

 Email as oral communication

  Perhaps email is more like oral communication because in one sense, a writer can elicit an immediate response, similar to a dialogue. The recipient can reply directly to the sender. Yet, the immediate response analogy only applies if an employee regularly checks her email. Emails can saved and any immediate response advantage is diminished if the employee does not check her email or "files away the communication."

 Oral communication is allowed on the company's premises, but only during nonwork hours. To treat email like oral communication would require that employees were limited to checking their email during lunch or breaks. Treating email like oral communication takes away the problem that occurred when email was treated like written communication--- now an employee will not be punished because his only access to cyberspace at work.

  The employer still pays a heavy burden because his equipment is used for activities which detract from his business' productivity and efficiency. Also, if an employee receives dozens of messages and finds that intertwined with business messages are personal and union messages, then the employee may spend a considerable amount of time sifting through personal and business email messages, once again to the detriment of the business owner. Oral communication does not require an employee to sift through conversations. The employee can simply say they do not have time talk. In that regard email does not appear to be an oral communication. To label email as written is not completely accurate and a consequence would be to prohibit any union email. Then again, to label email as oral communication merely because it more conveniently fits into the NLRB definitions and limitations is problematic. Email is not really oral communication. The decision to ban union email should not turn on definitions of oral and written which do not neatly apply to email.

 A Little of Both; But Neither Written or Oral

 Ultimately, we see that email is neither completely written nor oral. Email contains elements of both and also its own unique elements. The previous discussion shows the difficulty of trying to force old definitions on a medium that is entirely new. For that reason, email deserves its own treatment as "electronic communication" which requires the NLRB to establish new parameters for this new type of communication.

 How should the NLRB and courts redefine space in email to ensure that both the employees' right to join unions, bargain collectively and undertake concerted activity is adequately balanced against the employer's interest in maintaining a productive and efficient work environment? The following discussion offers solutions by examining email policy considerations against the purpose of the NLRA. Employers should consider if they want to prohibit personal email, including union email; monitor all email; or create alternatives to email for union communication.

 EXPLORE LAW REVIEW ARTICLES ON THIS TOPIC

• Elena N. Broder, Note. (Net) Workers' Rights: The NLRA and Employee Electronic Communication, 105 Yale L.J. 1639 (1996).
• Cheryl Stratton. Organizing Online: Union Solicitation on Employers' E-mail Systems, 1996 U.Chi. Legal F. 653 (1996).

  Email may be viewed as an empowering tool for employees who can learn how to effectively use unions' bargaining power to achieve a better work environment. Furthermore, employees can more actively participate in union activities by email without fear of retaliation. Even if employers maintain the right to monitor employee email to gage union activity and subsequently fire the employee; any firing is subject to scrutiny under the NLRA which protects union retaliation termination.

  To fully flesh out a good email policy we will first identify potential employer liability that arises by allowing employees to use email at work. Next, we will look at the relation between personal email and union email. Union email can include email from a fellow employee in a unionized workplace, a union leader in a unionized workplace or a nonemployee organizer attempting to organize a non-unionized workplace. Traditionally a nonemployee organizer has the most limited access to the employer's premises. An employer must determine if he will allow personal email and if does allow personal email on business property, then an employer will need to determine how he will monitor the email to ensure that business does not suffer. Lastly, we will discuss sample policy considerations and offer suggestions on how an employer can carve out his own cyber space.

Below is an example of the types of liability an employer may face if he allows his employees to use email and to explore the Internet. An employer should keep this list of legal risks in mind as he drafts his email policy.

• Defamation

The list of potential employer liability issues related to email policy and monitoring is not exhaustive. Employers should also be concerned about waiving privilege (attorney-client; doctor-patient) by using email. Most of the concerns can be addressed by a comprehensive email policy that has been well-planned and carefully constructed. Realistically, however, courts seem to agree that employees have a limited expectation of privacy in email and a company can ban personal use email altogether. Courts have not addressed whether union email should receive special protection when an employer bans all personal messages. By banning union email altogether, employers infringe on rights guaranteed in the workplace. However, companies which cannot afford email or industries where email is not a business necessity should not be required to provide email. This indicates that email is not a necessary means of communication. However, once an employer has the capability to provide email to his employers, he should think carefully before infringing on an employees' union rights.

 GENERAL GUIDELINES FOR EMAIL POLICIES

 An Employee Handbook should specify its email policy:

1. If personal use email will be allowed
2. How and when email will be monitored
3. The employer's policy in regards to union activity by email
4. Disciplinary procedures for violation of email policy

Before we begin a discussion of how to develop an email policy which recognizes union rights and employer's interests, feel free to peruse other sample email policies:

 Sample E-mail Policy #1

This policy is posted by the Computer Professionals for Social Responsibility. Includes brief discussion of the policy and anticipates potential misuse of company email and voicemail.

  Sample Email Policy #2

This policy is posted by the Computer Law Institute. Discusses in list form some procedural considerations, topics and alternative clauses for a proposed email policy and also examines in list form special features of electronic messaging.

  Sample E-mail Policy #3

This policy was written by a member of a San Francisco private firm and does not provide discussion of the sample policy.

 Liability under the Electronic Communications Privacy Act

 Read the Electronic Communications Privacy Act.

An applicable federal statute is the Electronic Communications Act which prohibits accessing or intercepting electronic communications. Employers fall neatly into the exceptions under this statue as long as they have consent from the employer (obtained through an employee handbook) or the employer can show a business necessity for the interception or access. This is another reason why a specific email policy is important.

  The Electronic Communications Privacy Act contains three exceptions where an employer may avoid liability: (1) with the employee's consent; (2) for a business exception and (3) as the provider. The interception may not exceed the employee's consent, so an employee manual must clarify the extent and circumstances of email monitoring. The employer must establish a written policy that indicates that an employee should have not expectation of privacy in email communication, reminding the employee that the computer is limited to business purposes. Furthermore, the employer may want to inform the employee that the "delete" function does not erase emails forever. The employer may access the email system both in the ordinary course of business and for other business related situations.

 SO YOU WANT TO MONITOR YOUR EMPLOYEE'S EMAIL:

• Mark S. Dichter, Electronic Interaction in the Workplace: Monitoring, Retrieving and Storing Employee Communications in the Internet Age 1996. Presented at the Fourth Annual Conference of the American Employment Law Council at Grove Park Inn, Asheville, North Carolina.
• Employee Monitoring: Is There Privacy in the Workplace? Fact sheet compiled by Privacy Rights Clearinghouse in San Diego, California.
• Parry Aft, Monitoring Communications on the Internet: Big Brother or Responsible Business? The New York Law Journal, September 30, 1996.
• Mark L. Goldstein and Lisa S. Vogel. Can you Read Your Employee's E-Mail? The New York Law Journal, February 24, 1997.
• Stuart Rosove, Employee Internet Use: Big Brother Gets Involved. The New York Law Journal, March 17, 1997.
• Lloyd L. Rich, Right to Privacy in the Workplace in the Information Age The Colorado Lawyer, March 1995.
• Eric S. Freibrun, Esq, Email Privacy in the Workplace-- To What Extent?
• Privacy Protection Principles for Electronic Mail Posted by Information and Privacy Commissioner/ Ontario, October 1995.

  UNION EMAIL IN THE WORKPLACE

 Banning personal email: An exception for union email?

  An Administrative Law Judge (ALJ) in E.I. Dupont de Nemours & Company found that because an employer allowed personal use of the company's email system, it could not ban only union email. The NLRB affirmed the decision. The NLRB did not decide if an employer who prohibited personal email could also prohibit union email. Personal email includes email which is unrelated to business purposes and which can include messages to family members and friends about everyday activities such as scheduling concerns. Union email may be from a union leader who is trying to organize a petition for a day care center, to discuss a grievance or to solicit a non unionized workplace to unionize.

  Union email should receive a higher level of protection than ordinary personal email because union email serves the purposes specific to the workplace. Employees may use personal email to discuss matters such as evening entertainment, grocery lists, and many employees probably use email to transmit jokes. Using email for those purposes is a convenience. On the other hand, union email is more than a convenience. Email allows union representatives an efficient means of organization because she can reach instantaneously a large amount of people. An employee who is unsure about organizing can directly address her questions to the union leader without fear that other employees will know. Granted, supervisors may have knowledge of the communication because they may lawfully monitor the email system, but the employee will not have to worry that other employees or clients will overhear her conversation. Once again, the NLRA protects employees from retaliatory dismissals based on union activity. On the other hand, NLRB caselaw recognizes that employers have no duty to assure unions with the best access available to employer property. Also, an employee cannot be compelled to allow distribution of union literature by non employee organizers on the employer's property. For a non employee union organizer to enter an employer's property, the union organizer must show that no other reasonable means of communication existed. Only then are the employer's property rights are trumped.

 A SUGGESTION

 UnioNet

  Here is one alternative: establish a UnioNet which would be similar to a bulletin board but allows the employee to respond to postings. (The "UnioNet" is a fictious name to represent an imaginary system with the capabilities described hereafter.) The UnioNet might be a directory or email folder that receives all email sent by union organizers. The UnioNet would be a hybrid of email and the Internet. An employee can access the UnioNet, but unlike a bulletin board, the user can reply to the union email from that very system. The employer can stipulate that an employee only log into the UnioNet only during nonwork hours. The employer can record the number of hours per week that is spent on UnioNet and if the employee exceeds the number of hours allotted for breaks, then the employer now has cause to closely monitor the time that the employee spends on the UnioNet. Firing an employee who spends too much time on UnioNet is not retaliation for union activity because the employee had notice that excess time on UnioNet was grounds for termination.

There are a number of drawbacks to such a system. First, the employer bears a tremendous burden of monitoring the UnioNet and keeping track of logged hours. Secondly, an employee who wants to access the UnioNet before or after work will log in excessive hours beyond the hour and half allocated for lunch and breaks. One solution to that problem could be that the logging of hours is compared against the hours that the employee reports on his timecard. UnioNet also assumes that the employee is on an hourly schedule. Most likely, a union member is on an hourly work schedule. Another solution is that the logged hours are date and time stamped. An employer could easily see that the employee is logging in before or after work hours.

  Will workers submit to such a system that tracks their activities, to the minute? Employers must be prohibited from using the recorded hours for anything other than to regulate time spent on UnioNet. The employer's burden of logging the hours is alleviated by the fact that employees who use the business email system for union activity will be disciplined, and the employer can be better assured that business productivity will no longer suffer. Furthermore, its up to the employer to determine how loosely he wants to monitor the UnioNet and that may depend on that specific company's problems with excessive union email during business hours. Furthermore, employees may accept this alternative over a content filtering system where the employer may prevent an employee from ever reading an email. In UnioNet the employer is not allowed to monitor the content of the email, only the time of access. The employer should not be able to delete messages sent UnioNet without allowing worker access to that email. The employer can, however, determine that messages will only stay on the UnioNet for a specified time, such as a month and then messages are deleted to prevent backlog on the computer system. If an employee wishes to preserve an email, he must request a copy from the union. The employer should be able to restrict the use of the printer for emails that may be lengthy.

The UnioNet works in a situations where the employer has banned all personal email, and UnioNet is the only email forum. If the employer allows personal use email, he could set up similar system for personal email that logs the amount of hours an employee can spend on personal email. Any personal email found on the business line can be grounds for discipline.

  The most problematic situation would be where the workplace is nonunionized, and a union organizer is attempting to communicate when all personal email is banned. The union organizer may be limited to traditional means of communication. However, the union organizer could use UnioNet as a means of persuading workers to vote for the union. The most likely solution will be to encourage unions to bargain for access to email for union activity. That will be the greatest protection for union email.

 CONCLUSION

  This discussion is to help employers develop an email policy that does not trump the workplace rights guaranteed by the National Labor Relations Act. Unions should aggressively bargain for email access rights and even employers who use business email but ban personal email should provide some alternative for union email. Email is a useful tool, but is still a tool that belongs to the employer. However, the only opportunity that employees may have to enter cyberspace may be through her employer. While an employer should not bear the burden of net-educating his employees, fostering email and Internet use may benefit the employer in the long run with better educated computer users. I hope that employers continue to be innovative and not tied to traditional notions when developing their email policies.

 FOR YOUR READING LIST

• Larry O. Natt Gantt, II, An Affront to Human Dignity: Electronic Mail Monitoring in the Private Sector.8 Harv. J.L. & Tech. 345 (1995).
• Laurie Thomas Lee, Watch Your E-Mail! Employee E-Mail Monitoring and Privacy Laws in the Age of the "Electronic Sweatshop." 28 J.Marshall L. Rev. 139 (1994).

 Cases

• Republic Aviation Corp. v. NLRB, 324 U.S. 739 (1945).
• Balance between unions' rights to organize and employer's right to an undisrupted workplace.
• E.I. Du Pont de Nemours & Company, 311 NLRB 893 (1993).
• Employer committed unfair employment practice by failing to allow union access to an email system that was open to other personal communications.
• Lechmere Inc. v. NLRB, 502 U.S. 527 (1992).
• More on union solicitation.

 Smyth v. Pillsbury, 914 F.Supp. 97 (E.D. Penn. 1996).

• employee had no expectation of privacy in email even though employment policies assured him that the employer could not access the email.

 A Law Student's Paper

• W. Merrill Earnest, Martin L. McFarland and David W. Prasse. Employee Email Privacy Georgia State University Law School.