Can an employer monitor email and Internet usage and take action based on that monitoring?

a.  Yes (27%)
b.  Yes, if the employee signed a consent form consistent with the model language provided in the NRPA (National Right to Privacy Act) (9%)
c.  It depends on whether the company has a policy deflating any expectation of privacy and whether it’s consistently enforced (63%)
d.  No (2%)

The correct answer is indeed “c.” Employers need two things here: (1) a policy deflating any expectation of privacy when using the company’s computer system and (2) consistent enforcement of that policy. Virtually all employers have the former but, unfortunately, few do the latter. Inconsistent enforcement can lead to discrimination claims and make it more difficult for you to go after employees who use company property for nefarious purposes.

Another tip: Any time a lawyer’s answer starts with “it depends,” chances are that’s the correct answer. Also, there’s no such thing as the NRPA (National Right to Privacy Act).  We made that up.

Allow me to repeat what I’ve said previously. When I was in private practice before joining Manpower, too often I had conversations like this:

HR Person: We want to fire Joe Sleaze. We caught him visiting porn sites at work.

Me: Do you have a policy that prohibits that?

HR Person: You bet.

Me: Is it consistently enforced?

HR Person: Um . . . define “consistently.”

Me: Well, tell me about recent instances in which you’ve taken action against employees under the policy.

HR Person: (Long pause)  Umm . . . uhh . . . ehh . . . well . . .

Me: OK, maybe it’ll be easier to tell me about recent incidents where you DIDN’T enforce the policy.

HR Person: Well, we didn’t exactly do anything when our CEO forwarded a racy email to the whole company. Or when our top salesperson got caught downloading naked pictures of himself. Or when (continues to reel off another 12,000 or so examples).

Don’t let that be you.  A policy that isn’t enforced isn’t really a policy. For a sample social media policy, click here.

Thought I would pass along just a few recent examples for your reading pleasure:

• Click here for a discussion on how employers are dealing with the latest forms of CrackBerry addiction in the workplace.
• Click here for a blog devoted entirely to avoiding e-mail disasters, including why it’s never a good idea to send racist e-mails at work (and why “oops, I meant to send this to a different address list” probably isn’t a great defense).
• Click here for a prediction that Twitter will kill traditional performance evaluations and here for a “tweetable” Twitter policy (i.e., it’s less than 140 characters).
• Even law schools are getting in on the act. Click here for a study dubbing itself The First Law School Seminar Paper on Twitter.

Enjoy.

The Facts

A Secret Service supervisor who was once a leader of Barack Obama’s security team is accused of sending an e-mail that contained a derogatory sexual joke referring to African-Americans, Native Americans and other groups.  The e-mail was discovered among documents released in a discrimination lawsuit filed against the agency by ten African-American agents.

The supervisor, Victor Erevia, allegedly forwarded an e-mail he received from someone else to five other Secret Service supervisors.  The message contained a “joke” describing “popular myths of sexuality” and derided various racial, ethnic and religious groups.

Another e-mail also raised some eyebrows.  The message allegedly was sent to David O’Connor, currently a Secret Service senior supervisor responsible for overseeing presidential protection.  The e-mail was sent by O’Connor’s brother, a former agent, and reportedly complained about affirmative action, political correctness and the Reverend Al Sharpton.  O’Connor allegedly replied to the message, asking if he could share it with another supervisor he deemed worthy of “trust and confidence.”  O’Connor’s lawyer says O’Connor never actually forwarded the e-mail to anyone.

A spokesperson for the Secret Service said, “We are deeply disappointed by any communication or action on the part of our employees that exhibits racial or other insensitivity.”

The lawsuit against the agency has been pending since 2000.  No resolution appears imminent.

What Should Employers Do?

More and more plaintiffs’ attorneys are turning to e-mails as a key source of evidence in employment lawsuits.  Here’s how the process often works:  (1) a lawsuit is filed, (2) a far-reaching discovery demand is made and then (3) the company is forced to turn over years of e-mails that will be scrutinized by attorneys trained to find evidence of discrimination.

Don’t let that happen to you.  Employers should (1) have a policy in place banning inappropriate use of company email and (2) consistently enforce it.  Virtually all employers have the former but, unfortunately, too few practice the latter.  I also strongly recommend that the risks of “joke” e-mail forwarding be specifically addressed in all sex harassment training to help employees (1) avoid unnecessarily ruining their careers and (2) exposing the company to legal risk.

To help clarify its ruling, the NLRB has issued a memo detailing how it applied Register Guard in five recent cases.  Click here for the full text.  Here are the highlights:

Case #1:  A rule barring a union from sending email messages to managers outside its main facility was lawful.

The employer in this case allowed the union to use company email to communicate with employees at its facility.  The union then started sending messages to managers outside the facility.  The company demanded that the union stop but it refused.  The NLRB ruled in the employer’s favor, stating:  “We found the rule to be lawful because it concerned how the union was permitted to use the employer’s e-mail system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.”

Cases #2 and #3:  Non-job-related email rules must be consistently applied.

The employers in these cases had valid rules.  However, the evidence showed that they discriminatorily applied the rules against union solicitations.  The companies disciplined employees who sent union-related emails but allowed a plethora of personal solicitations and emails, including school fund-raisers, sales of various products, collections of money for needy families and a multitude of email jokes, chain letters and party invitations.

Case #4:  Non-job-related email rules can’t be “re-promulgated” for anti-union reasons or used to prohibit complaints about working conditions.

An employee sent numerous emails complaining about working conditions, including an anonymous email to the company’s board of directors.  In response, the company “re-promulgated” a rule banning personal email use and then fired the employee for participating in a “disruptive anonymous email scheme.”  The NLRB ruled that the re-promulgation and discharge were discriminatory, again pointing to a multitude of personal emails allowed by the company, including jokes, baby announcements and offers of tickets to sporting events.

Case #5:   Register Guard may not apply to unwritten rules or company bulletin boards.

The employer had no written non-solicitation rule and generally allowed non-business postings on its bulletin boards.  However, as soon as union activists started posting information on the boards, the company implemented an unwritten rule banning non-business solicitations.  The NLRB found that Register Guard didn’t apply because the case didn’t involve discriminatory enforcement of a written company-wide no-solicitation policy.  Instead, it involved an unwritten policy that was abruptly (and discriminatorily) changed in response to union activities.