Electronic Information and Communications

From: Staffing

Introduction

Technological advances have had a great impact on communication and the distribution of information in today’s business world. With internal voice mail systems, computer networks, and worldwide electronic mail, workplace communication is more extensive and faster than ever. As business moves toward the paperless office with the increased use of email, voice mail, and other electronic communications, employers will confront unique and complex legal issues, such as the following:

Employee privacy.
Online defamation and trade disparagement.
Electronic harassment.
Confidentiality of trade secrets and proprietary information.
Copyright infringement.
The right of unions to solicit employees and distribute information via email.
The discovery of stored communications.
The right of employers to access and monitor workplace communications.

This article reviews some of these legal issues in relation to existing federal laws and, if applicable, state laws. This is merely an introduction to what is a very complex area and one that is changing rapidly as the law changes to accommodate new issues.

General Issues and Federal Law

Privacy Rights

The widespread introduction of technology into the workplace is likely to intensify the conflict between employees’ privacy rights and the competing right of employers to oversee the workplace. One source estimates that employers already monitor an estimated 400 million telephone calls a year, and employer monitoring of email communication and computer files is also common. Such monitoring can be complicated since it involves the federal constitution’s definition of an employee’s right to privacy for public employees, some state constitutions’ protections of the right to privacy, statutory and common law, and the employer’s right to ensure that communications systems are properly used.

Fourth Amendment

The Fourth Amendment’s guarantee of protection from unreasonable searches and seizures by the government provides public employees with the right to privacy in their workplace. Like the federal constitution, many state constitutions protect individuals, including government employees, from government searches and seizures as part of the individual’s right to privacy. Monitoring of email or voice mail by a public employer falls under this Fourth Amendment protection and, accordingly, must satisfy constitutional standards. A government employee’s Fourth Amendment right to privacy has been infringed if the following are true:

The employee has a reasonable expectation of privacy.
The particular search or seizure by the government employer is unreasonable based on a balance between the nature of the intrusion and the importance of the government interest justifying the intrusion.

A court’s determination of whether there is reasonable expectation of privacy in email or voice mail communications will depend largely on the facts of each case. A public employee may have a reasonable expectation of privacy in email, voice mail, and other electronic transmissions if the particular communications system limits access to users with personal passwords even though the employer owns the computer or equipment. Given the routine electronic storage of email, voice mail, and other electronic communications, however, courts may conclude that employees have little real expectation of privacy in these messages. Most importantly, employees’ expectations of privacy may be diminished or eliminated in cases where employees know the employer has access to their email or voice mail systems. All public employers who intend to monitor electronic communications need to adopt a monitoring policy informing employees that it is the employer’s policy to monitor email, voice mail, and electronic communications.

Right to Search Electronic Communications

On June 17, 2010, the U.S. Supreme Court issued a unanimous decision in City of Ontario v. Quon — the first Supreme Court case directly addressing public employees’ privacy rights with respect to communications via employer-issued communications devices such as pagers, cell phones, and smart phones. The court held that a California city’s review of two months’ worth of text messages on a police officer’s city-issued pager was reasonable where the city was concerned that, among other things, it might be paying for employees’ personal use of those pagers. Notably, the court took pains to limit its holding to the particular facts of the case, making clear that it wished to avoid defining the contours of employee privacy rights on new technology before the role of the technology in the workplace and society become clear. The case arose when officials for the city of Ontario, California noticed that an officer on the city’s SWAT team was repeatedly exceeding the character limit on his work-issued pager, leading to overage charges. An audit of the officer’s text messages uncovered hundreds of personal messages, some of which were of a sexual nature.

Although the Supreme Court was asked to address a number of potentially far-reaching questions about the scope of employees’ Fourth Amendment rights against unreasonable searches and seizures on work-issued communications devices, it refused to do so. Instead, the court looked at one question: Was this particular employer’s review of text messages a reasonable search under the Fourth Amendment? The court noted that regardless of the employee’s expectation of privacy, an employer’s search of an employee’s property at work is reasonable if it is a noninvestigatory, work-related search or a search incident to an investigation of work-related misconduct, and if the search is “justified at its inception” and “reasonable in scope.” Here, because the city had a legitimate interest in ensuring that employees were not paying for work-related messaging expenses and that the city was not paying for personal messages, the court found that the search was justified at its inception. Moreover, the court found that the search was reasonable in scope, for three reasons. First, it was an “efficient and expedient” way to reach the city’s goal. Second, it was not “excessively intrusive,” since it covered only two months worth of messages and did not include messages sent or received during nonwork hours. Third, because Quon was a SWAT team member, he did not have much — if any — expectation of privacy in a work-issued pager, because he could reasonably expect that his work-related communications might be subject to scrutiny.

The court declined to answer whether a public employee has any expectation of privacy in a work-issued pager. That issue was significant in this case because although the city had a formal policy informing employees that they did not have any expectation of privacy in their email or work-issued pagers, Quon claimed that one of his supervisors overrode that policy when he told Quon that his text messages would not be audited so long as Quon paid all overage fees accrued on the pager. Notably, although the court declined to specifically address the issue, the majority opinion included significant discussion of and seeming sensitivity to the rights of employees to some privacy in their electronic communications. Justice Scalia, in a concurring opinion, warned that many employees may grasp onto the court’s discussion of privacy to attempt to push back on employer’s search rights in future cases.

From Quon, employers should recognize that it is vital for all employers, both public and private, to have a comprehensive electronic communications policy clearly placing employees on notice that communications over employer-provided systems and devices are not private and may be reviewed. Additionally, employers should undertake searches of employee communications only for legitimate, work-related reasons. Finally, employers should ensure that the scope of any search is reasonable in light of the underlying purpose.

Federal Wiretapping Statutes

In addition to potential constitutional and common law constraints on an employer’s ability to monitor email, voice mail, and electronic communications, the federal government has adopted legislation designed specifically to protect the privacy of electronic communications. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, more commonly known as the Federal Wiretapping Act, as amended by the Electronic Communications Privacy Act of 1986 (ECPA), prohibits the interception, use, or disclosure of protected wire, verbal, and electronic communications. Many state legislatures have adopted similar restrictions. Accordingly, state and federal wiretap legislation may severely limit an employer’s ability to monitor its employees’ email, voice mail, and electronic messages.

The ECPA defines an electronic communication as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system that affects interstate or foreign commerce . . ..” In many cases, email will constitute such an electronic communication.

The ECPA further defines a wire communication as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication.” Voice mail communication may fall within the coverage of the ECPA.

Many states have adopted wiretapping statutes, modeled after the federal ECPA, that prohibit the interception, use, or disclosure of any wire, verbal, or electronic communications. Unlike federal law, the state law may apply regardless of whether the email or voice mail communications affect interstate or foreign commerce, thus significantly expanding the number of employees covered.

ECPA Restrictions

In general, the ECPA prohibits the interception, use, and disclosure of electronic communications. Under the ECPA, persons whose communications are intercepted, disclosed, or used in violation of the Act may bring a civil action against the violator. When a party has been found in violation of the ECPA, the plaintiff may recover actual damages, any profits made by the defendant as a result of the violation, or statutory damages of $100 a day for each day of the violation or $10,000 — whichever is greater. A plaintiff may also obtain injunctions, punitive damages in appropriate cases, reasonable attorneys’ fees, and other litigation costs. The ECPA also provides for criminal liability. Damages under some state wiretapping statutes may exceed those provided by federal law.

Exceptions to ECPA Restrictions

The ECPA makes it unlawful to intercept messages in transmission or access stored information on electronic communication services or disclose any of this information.

There are a number of exceptions to the law, however, which appear to permit an employer to monitor its employees’ use of electronic communications media, such as the following:

The ECPA only applies to electronic communications that “affect interstate commerce.” Therefore, wholly internal organization communications limited to a single state are exempted from the law.
Business use exception allows a provider of electronic or wire communications “whose facilities are used in the transmission of a wire or electronic communication, [may] intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the [carrier].”
Prior consent exemption protects an organization from liability when “one of the parties to the communication has given prior consent” to the interception or disclosure. Courts have found this exemption satisfied by both expressed and implied consent by employees.
The ECPA does not prevent access to electronic communications by system providers. It has been argued that an employer that maintains its own email or voice mail system should qualify as a system provider.
The ECPA contains a “telephone extension exception” which is derived from the statute’s restrictive definitions of the terms intercept and device. Interceptions of communications are unlawful if accomplished through the use of any electronic, mechanical, or other device. Excluded, however, are “any telephone or telegraph instrument or facility, or any component thereof furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business . . ..”

Courts have held that monitoring falls within the telephone extension exception only if it has a legitimate business purpose. The courts have suggested that the monitoring of employees falls within the exception in situations in which the monitoring program is designed to allow supervisors to train and instruct employees regarding their telephone technique and in which the employees were aware of the monitoring. Employers may also use an extension telephone to monitor employees’ phone calls when the employer has a reasonable concern about the disclosure of confidential information.

In contrast to cases such as the previously mentioned, most courts have held that a personal call may be intercepted in the ordinary course of business to determine its nature but never it’s content. Thus even when the employer’s monitoring is initially motivated by a business goal, the employer does not have an unlimited right to listen to employees’ personal calls, and the employer must stop listening once recognizing that the call is personal.

Courts have not resolved whether the telephone extension exception authorizes monitoring of email or voice mail messages. The exception may not apply to email monitoring unless telephone equipment or facilities are specifically involved, and it is unclear whether courts will consider a network manager’s modem, computer, or software program to be telephone or telegraph equipment. Interception of voice mail messages may fit within the exception in cases where the employer’s equipment is used in the ordinary course of business. However, courts have yet to expressly apply the exception to the interception of email or voice mail communications and employers have been forced to justify their monitoring policy on some other exception.

Access to Stored Communication

In addition to the ECPA’s restrictions on the interception, use, and disclosure of electronic communications, the act prohibits unauthorized access to electronically stored wire and electronic communications. Although this restriction was directed toward protection of stored email communications, voice mail may also be covered.

Electronic storage includes “any temporary, immediate storage incidental to the electronic transmission” and permanent storage by the system provider “for purposes of backup protection.”

A successful plaintiff may recover actual damages and any profits made by the defendant as a result of the violation, but in no case shall a person be entitled to receive less than the sum of $1,000. A plaintiff may also obtain injunctions and reasonable attorney fees and other litigation costs, although punitive damages are not available. The act also establishes criminal penalties.

The ECPA exempts conduct authorized by the agent or provider of a wire or electronic communication service from the restrictions against unauthorized access of stored communications. Depending on how broadly courts interpret the phrase “person or entity providing a wire or electronic communications service” an organization that provides its employees with email or voice mail service may have the right to access stored communication at its discretion. Given the federal law’s distinctions between interception, disclosure, and use of transmissions on the one hand and access to stored communications on the other, an employer with no right to intercept electronic transmissions may avoid liability by accessing employee communications after they have been stored. Until this apparent inconsistency is resolved by the courts, however, an employer’s safest course is to adopt a company policy authorizing it to monitor and access email, voice mail, and electronic communications.

Legislation Concerning Monitoring

At least one state, Connecticut, has passed a law regarding electronic monitoring by employers. Under the Connecticut statute, employers must post a notice concerning the types of electronic monitoring that the employer may engage in. Electronic monitoring under the statute is defined very broadly and would likely include activities ranging from review of telephone records to actual monitoring of phone calls. The statute provides limited exceptions for investigations of employee misconduct.

The California legislature passed bills regarding electronic monitoring based on the Connecticut statute. However, California’s Governor vetoed the bills. A number of bills regarding electronic monitoring have been introduced in state legislatures around the country and other states will likely introduce electronic monitoring restrictions.

Congress has also proposed legislation intended to limit electronic monitoring. The Privacy for Consumers and Workers Act was first introduced in both the House and Senate in 1993. Under the proposed legislation, employers would have to post a written notice informing employees and prospective employees that the employer engages in workplace monitoring. Employers also would be required to provide individual notice of monitoring to prospective employees at the time of the first personal interview. Since 1993, several other electronic monitoring bills have been introduced in Congress and the issue continues to be of interest to several members of the House and Senate.

Online Defamation, Slander, and Trade Libel

The advent of electronic communication via email and voice mail has increased the potential for defamation, slander, and trade libel or disparagement of co-workers, customers, vendors, and competitors. Electronic communications tend to be more casual, more subject to misinterpretation, and distributed to a much wider audience than other modes of communication. In addition, there is also often a stored record of the message, making it much easier to establish the existence of the statement.

In light of the inherent dangers associated with electronic communications, the potential for defamation liability arising out of such communication cannot be ignored. To succeed in a claim of defamation, a plaintiff must normally prove that the defendant made a false statement, published it to a third party, negligently failed to ascertain the truth of the statement, and caused injury to the plaintiff’s reputation. An employer may be liable for defamatory statements made by its employees if the statements were made within the scope of employment. Given this broad standard, it is easy to imagine scenarios in which email communications may give rise to defamation lawsuits.

Electronic communication may also expose an employer to potential liability for trade libel or disparagement, which is unlawful in most states. Trade libel or product disparagement has been defined as “an injurious falsehood that demeans the plaintiff’s goods or the character of his business.” The risk of liability for trade libel or product disparagement is especially great if employees transmit email messages concerning customers, vendors, and competitors through public email networks. If a poorly drafted message falls into the wrong hands, the employer may well face substantial liability for trade libel or product disparagement. Thus, employers should strictly limit the use of email, voice mail, and electronic communications systems and train employees to recognize the risks associated with such forms of communication.

Harassment and Discrimination Through Electronic Communication

The use of email, voice mail, instant messaging programs, electronic employee bulletin boards, and other forms of electronic communication in the workplace may encourage employees to make potentially offensive statements. Employees have a tendency to use email to disseminate inappropriate jokes or to play pranks on co-workers, even though the jokes and pranks are intended in good fun. Such conduct has the potential to offend or to create a hostile work environment, leading to charges of harassment.

Hostile work environment sexual harassment exists when an employee is subjected to verbal or physical conduct of a sexual nature when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Although the hostile work environment claim first arose in the context of sexual harassment, courts have also recognized claims of nonsexual harassment based on other protected characteristics such as age, race, and disability.

From an employer’s perspective, the very nature of electronic communications can magnify the potential liability for email or voice mail harassment in the workplace. Unlike personal communications, there will almost always be a record of email and voice mail messages, stored either by the employee or by a backup system or both, thus leaving a trail of evidence confirming the existence of a hostile work environment. Given the ease of discovering and obtaining copies of such communications through litigation, the potential for discovery of a “smoking gun” is increased.

A number of sexual harassment or sex discrimination lawsuits have been caused, at least in part, from inappropriate email or voice mail communications. Plaintiffs have also relied on electronic communications records to support race, age, retaliation, and other types of harassment and discrimination claims. Other employees have asserted related claims for negligent or intentional infliction of emotional distress and other common law damage claims based in part on conduct related to electronic communications.

To avoid such litigation, employers should train employees to use electronic communications appropriately, emphasizing the unique aspects of email and voice mail systems that may heighten the risk of harassment and discrimination claims. In addition, employers should forbid all employees from making threatening, harassing, or offensive comments via email or voice mail. Employers may also wish to initiate lawful monitoring procedures to determine if harassment has taken place by tracing the harassment through the electronic system.

Trade Secrets and Confidential Information

Another troublesome issue surrounding the widespread use of computers and electronic communication systems is the erosion of an employer’s ability to protect trade secrets and other confidential information. It may be difficult, for instance, for an employer to prevent employees from using email, voice mail, and computers to seize exclusive/private business information. Employees can easily download information onto a computer disk or disseminate the information outside of the organization.

In addition to the damage caused by an employee’s intentionally misappropriating or inadvertently disclosing confidential organization information, employers that fail to guard against such misappropriation diminish their rights to protect the information. Most statutory protections of trade secrets require the employer to make reasonable effort to keep the information in question confidential. For example, the Uniform Trade Secrets Act, adopted in many states, defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, which is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” In light of the relative ease with which email communications may be intercepted or misdirected, routine transmission of confidential information through email may undercut an employer’s ability to prove reasonable effort to maintain secrecy.

Accordingly, employers that wish to protect trade secrets and other confidential information should adopt policies specifically defining what information may be communicated through internal and external electronic communications systems. As a general rule, information of a sensitive or confidential nature should not be communicated by email. Warning employees of the risks associated with such forms of communication may encourage them to be cautious and help prove that the organization took appropriate steps to guard the secrecy of its confidential information.

Copyright Infringement

Another potential risk arising out of the use of electronic communications in the workplace is copyright infringement. Many employees have access to public email networks.

As anyone who has “surfed the network” knows, copyright violations are common, creating the impression that users can post and use any information. For example, many users erroneously assume that it is permissible to post newspaper articles and other types of information.

Although this activity is usually harmless, employers may face potential claims of copyright infringement if employees post copyrighted information on company computers, especially if the employers know of and approve of this posting. In addition, printing material that has been posted by others, distributing that material within the office, or publishing it outside the office may also constitute copyright infringement.

Accordingly, the best strategy to protect an employer from potential liability for copyright infringement is to adopt and enforce written guidelines concerning the posting of information. Even if a written policy does not completely prevent unlawful posting by employees, the mere existence of such a policy may provide a defense for employers accused of copyright infringement.

Employers should advise employees not to post information unless they or the employer have created the information or own the rights to it. If there is any doubt regarding the copyright status of a particular publication, employees should refrain from posting the information or distributing it to others.

Blogging

A blog (short for “Web log”) is a regularly updated online journal of information and opinions. The key difference between a blog and a Web site is that a blog allows the owner to easily post diaries through which visitors can read and interact. Thus, blogs are similar to online chat rooms and message boards, but focus on specific topics of the blog owners’ choice. There are blogs on about every conceivable subject, including the proverbial taboo subjects of money, religion, and politics. Most troubling for employers is the workplace blog in which bloggers write about their experiences at work, including their co-workers and supervisors.

Because blogs are easy to write and the Internet has immense reach, there are myriad risks to employers. Through blogs, employees can leak sensitive information to competitors and disparage a company, employees, supervisors, and customers. These risks can result in numerous problems, including decreased morale in the workplace, the loss of goodwill with customers and other companies, and a ruined public image. For example, in November 2004, Delta Airlines fired a flight attendant who posted provocative pictures of herself, attired in her Delta uniform, on her personal blog.

Despite the risks, workplace blogging can also be an effective and inexpensive means of direct advertising. Many companies have determined that official (or quasi-official) corporate blogs produced by authorized employees can provide substantial benefits. For example, Microsoft reportedly has full-time bloggers on staff and encourages other employees to blog as a way for employees to reach out to customers and clients.

A good blog raises a company’s visibility and profile and has the potential to reach millions of readers. In addition, a good blog can provide prospective employees with a unique perspective on what it is like working for a company. For this purpose, Sun Microsystems has dedicated an entire portion of its Web site to blogs written by its employees.

Employer Responses to Blogging

While some employers may find that the benefits of permitting blogging in the workplace outweigh the potential dangers, most employers will find that some limits should be imposed. The following are some options that an employer may choose to control blogging in or about the workplace.

Banning Employee Blogs

An outright prohibition of any employee blogging may be viewed as heavy-handed and bad for business. Employees and potential employees may resent what they see as an inappropriate abridgement of their rights, and valuable resources may be wasted trying to police an unpopular prohibition. This could morph into bad publicity for the employer, both within the blogosphere and in the mainstream media.

In addition, terminating an employee for blogging could, in some states, form the basis for a wrongful termination claim. Numerous states have enacted laws that limit an employer’s ability to fire an employee based on off-duty conduct that is not related to the job. Additionally, if an employee uses his blog for political purposes, and is discharged for that reason, the discharge may violate the law, including California’s Labor Code, which prohibits interference with an employee’s right to engage in political activity. The same could be true for other statutorily protected activities, such as discussing compensation with other employees, promoting health and safety in the workplace, and whistleblowing. The federal civil rights laws protect employees from adverse action based on speech related to employment discrimination, workplace harassment, or disability- or religious-based reasonable accommodations, and would arguably apply to employee blogs. Finally, the First Amendment right to free speech may protect blogging by state or federal employees, although it does not apply to employees in the private sector.

Prohibiting Blogging at Work or in a Manner that Harms the Employer’s Interests

This is more moderate than the first option, and seeks to limit blogging only to the extent that it interferes with the employer’s business. In addition to the vicarious liability issues and potential network security risks, the simple fact is that blogging from the workplace can be a significant drain on productivity. Unless there is a clear benefit associated with allowing employees to blog from work, most employers will probably choose to prohibit personal blogging by employees during work hours and in the workplace.

Similarly, there is no reason an employer should tolerate blogging that reveals trade secrets or confidential information, or that is grossly disloyal to the company. (However, beware of taking action based on those protected criticisms discussed previously.)

The downside to this approach is that it may be too lenient. For example, the Delta flight attendant was not blogging on company time, had revealed no confidential information about Delta, and had not been disloyal to Delta in any way. However, most employers can sympathize with the airline for considering her blogging inappropriate nonetheless. Trying to specifically list all possibilities is bound to be a losing battle for the employer.

The Flexible Approach

Given the practical and legal risks of a complete ban of employee blogging, and the inadequacy of a work-related-only ban, the best approach may be to balance the positive aspects of the blog with appropriate safeguards against the greatest risks. Employers should establish written blogging policies that alert employees to potential liabilities and reiterate the obligations to protect confidential information.

FTC Guidelines

Effective December 1, 2009 and located at 16 C.F.R. 255, the Federal Trade Commission (FTC) issued final guidelines regarding the use of endorsements and testimonials in advertising. Accordingly, employees who use social media (such as blogs) to make statements about their employers’ products may create unintended legal liability for their employers if a consumer later claims to have been misled into purchasing an allegedly dangerous or defective product by such a posting.

According to the guidelines, an endorsement is an advertising message that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than a sponsoring advertiser. An endorsement must not include any representation that would be deceptive if made directly by the sponsoring advertiser. Further, the guidelines specify that companies are subject to liability for both of the following:

False or unsubstantiated statements made through endorsements.
Failing to disclose material connections between themselves and their endorsers.

The guidelines also impose liability on endorsers and companies who fail to disclose material connections between an endorser and the company about whose products that endorser comments. Consequently, an employee who uses electronic media, including email, blogs, or social networking sites to make comments about a product made by their employer, and who fails to disclose their relationship with that manufacturer, may create legal liability under the FTC guidelines. Further, should a consumer rely on a particular comment in such employee posting to the consumer’s detriment, any ensuing damage could be attributed to the manufacturer/company.

For example, an online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of the endorsement. Therefore, the poster should clearly and conspicuously disclose their relationship to the manufacturer to members and readers of the message board.

Additional Considerations

Because blogs travel quickly in the blogosphere, employers should consider what is being said about them on blogs. Employers can utilize tools, such as blog search engines, to find blogs that discuss their company and topics related to their company. Additionally, if requested, blog search engines can deliver those posts directly to the desktops of management.

Employers should use extreme caution in taking any disciplinary action against employees who blog, and should remember that all local, state, and federal labor and employment laws will apply. Prior consultation with counsel is highly recommended.

Union Solicitation by Electronic Communication

Electronic communication may provide labor organizations with a potent method of organizing employees, allowing union sympathizers to send messages to an entire workforce via email or voice mail. Because most of the doctrines developed under the National Labor Relations Act (NLRA) concerning solicitation of employees, distribution of literature, and the use of traditional bulletin boards do not consider the electronic workplace, employers may find it difficult to oppose the use of company email or voice mail systems for organizational purposes without a carefully drafted policy.

Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise” of their collective-bargaining rights. The Supreme Court has held that an employer’s policy prohibiting union solicitation of employees outside work time on company property is an unreasonable obstacle to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary to maintain production or discipline.

In contrast, enforcement of a no-solicitation rule during working hours will be presumed to be valid in the absence of evidence that it was adopted for discriminatory purposes. The basis of this distinction is that while working time is for work, time outside of working hours is an employee’s time to use as wishes without reasonable restraint, even though the employee is on company property.

In contrast to the freedom allowed for verbal solicitation, the National Labor Relations Board (NLRB) has held that employers may forbid distribution of literature in work areas, even if the distribution takes place during nonworking hours. The prohibition on distributing written materials is justified since literature could litter an employer’s premises and raise a hazard to production whenever it was distributed. Although an employer may prohibit the distribution of literature in work areas even during nonworking hours, the NLRB has consistently required employers to first adopt a no-distribution policy.

Even in the face of a written no-solicitation or no-distribution policy, the employer may commit an unfair labor practice if its adoption or enforcement of the policy reveals a discriminatory purpose. Thus, an employer may not selectively enforce such a policy against solicitation and distribution by unions while simultaneously allowing other groups or individuals to solicit employees or distribute literature for other purposes. Furthermore, implementing or strictly enforcing a no-solicitation rule during the height of union organizational activities may make a no-solicitation/no-distribution policy void.

The NLRB and the courts have developed similar guidelines for the use of corporate bulletin boards. Although the NLRB has recognized that the NLRA does not generally grant employees a statutory right to use an employer’s bulletin board, an employer that allows employees to use a bulletin board for general purposes must grant labor unions a similar right to post notices on the board.

Although the NLRB has yet to rule on an employer’s ability to limit the use of company email or voice mail systems in the context of a union organizing drive, the board found an employer’s selective enforcement of a rule prohibiting the use of email for union purposes was unlawful. In addition, the NLRB’s general counsel has taken the position that where an email communication can reasonably be expected to occasion a spontaneous response, or initiate conversation, it may be treated as solicitation. In that case, a rule prohibiting all nonbusiness use of email would be presumed unlawful.

Until the NLRB and the courts provide further guidance for the use of email, voice mail, and electronic communications systems by unions for organizational purposes, the employers should review their policies in light of the general counsel’s position on this issue.

Discovery of Stored Communication

As the use of email and other electronic communications grows, the cost of storing the communications grows as well. Moreover, a large volume of stored email can cause significant problems for employer’s networks.

Many information systems consultants recommend that companies restrict the storage of email and other electronic communications for purely technical reasons and employers should implement an electronic document retention policy.

Many employers have not implemented a consistent electronic document retention policy and there is a perception that email or other electronic documents may provide damaging evidence in employment or other cases. However, employees often erroneously believe that once an email is deleted it will be removed permanently from the system. This mistaken belief encourages employees to recklessly send email messages that they would ordinarily not communicate through other means.

Given the potential value of stored electronic communications, plaintiffs’ employment attorneys have begun to focus on discovery of stored email, voice mail, and other electronic communications that may confirm the existence of sexual or racial harassment or other types of discrimination. In today’s businesses world, organizations now exist that actually specialize in locating computer files that companies once thought were destroyed.

Complying with electronic discovery requests can cost employers thousands of dollars and courts have been reluctant to shift that cost to the party requesting such information. In light of the technical problems associated with retaining emails and other electronic communications, as well as the economic costs of complying with electronic fishing expeditions, companies should adopt a preventive policy designed to limit the use of the company’s email system and define procedures for its use.

Employers should inform employees at all levels of the company’s storage practices and the organization’s ability to retrieve communications. Employers should also be familiar with how their electronic communication systems operate and they may wish to alter those operations so as to ensure that communications are actually destroyed when deleted.

E-Discovery and Federal Rules of Procedure

Effective since December 1, 2006, several changes to the Federal Rules of Civil Procedure (Rules 16, 26, 33, 34, 37, and 45) address the discovery of electronic stored information (ESI).

Discoverable

According to Rule 16, litigants will specifically be required to produce ESI in response to document requests, interrogatories, and/or subpoenas. Rule 16 includes electronic discovery among the topics that may be addressed in a pretrial scheduling order. Specifically, the order may include any agreements that the parties have reached to minimize the risk of waiver of privilege or work-product protection as well as any other procedures the court may adopt for the discovery of ESI.

According to Rule 26, parties will also be required to include as part of their initial disclosures a copy of, or a description by category and location of, all documents, ESI, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment.

Production of Electronically Stored Information

According to Rules 26, 34, and 45, if a request or subpoena does not specify the form for production of ESI (and absent other agreement by the parties), the responding party will be required to produce the information in either of the following formats:

The form in which the information is ordinarily maintained.
A form(s) that is reasonably usable.

Additionally, if a document request or subpoena does specify the form for producing ESI the responding party may object to or agree with the request. If the responding party objects, the parties must confer before a motion to compel is filed. Upon a motion showing good cause for the specific form, the court may order a specific form of production, but is not limited to the form originally requested.

Inaccessible Data

According to Rule 26(b)(2), in response to a discovery request a party need not provide discovery of ESI that is not reasonably accessibly because of undue burden or cost. If the requesting party is not satisfied with the discovery that is produced, the court must resolve the discovery dispute under existing standards.

For example, on a motion to compel discovery or a motion for a protective order, the burden is on the responding party to show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause. The court may specify conditions for the discovery.

The Federal Rules Advisory Committee Notes identify several factors to consider when determining whether the benefit of the requested discovery outweighs the burden to the production party:

Specificity of discovery request.
Quantity of the information available from other and more easily accessed sources.
Failure to produce relevant information that seems likely to have existed but is no longer available from more easily accessed sources.
The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources.
Predictions as to the importance and usefulness of the further information.
The importance of the issues at stake in the litigation.
The parties’ resources.

Claims of Privilege

According to Rule 26(b)(5), when a party withholds information otherwise discoverable by claiming that it is privileged, or subject to protection as trial-preparation material, the party must make the claim as follows:

Expressly.
Describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

According to Rule 45(d)(2)(B), when a party produces data without intending to waive a claim of privilege, it may notify the receiving party of the claim of privilege.

Such notice must meet all of the following requirements:

Provided in writing, unless circumstances preclude a written form of communication.
Be specific and precise.
State the basis for the claim of privilege.

Upon notification, the receiving party must return, sequester, or destroy all copies of the specified information. The party may not use or disclose any of the information pending resolution of the privilege claim. The producing party must then preserve the information pending a court ruling on whether privilege was properly asserted or whether it was waived. According to the Advisory Committee, the intent of this amendment is to furnish a procedure that allows the responding party to assert a claim of privilege or work product protection after production. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve the information.

Safe Harbor

According to Rule 37(f) and absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost because of the routine, good-faith operation of the party’s electronic information systems.

Pretrial and Party Conferences

According to Rules 16(b) and 26(f), the parties must discuss e-discovery issues during their discovery planning conference.

Specifically, the discussion must include:

What changes should be made in the timing, form, or requirement for disclosures, including a statement as to when disclosures were made or will be made.
The subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues.
Any issues relating to disclosure or discovery of ESI, including the form or forms in which it should be produced.
Any issues relating to claims of privilege or of protection as trial-preparation material, including — if the parties agree on a procedure to assert such claims after production — whether to ask the court to include their agreement in an order.
What changes should be made in the limitations on discovery imposed under these rules, or by local rule, and what other limitations should be imposed.
Any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).

An Effective Company Policy

Benefits

Well-designed company policies will significantly limit the risks associated with email, voice mail, and electronic communications. In particular, such a policy, by reducing employees’ expectations of privacy, may limit an employer’s liability for monitoring email, voice mail, and electronic messages. The existence of such a policy may also indicate whether employees have consented to the interception of their electronic communications, thus constituting an exception to federal and state wiretapping statutes.

An effective electronic communications policy can also have other benefits, such as the following:

It can reduce the potential for online defamation and harassment caused by misuse of electronic communications.
It can lessen the risk of disclosure of confidential information.
It can reduce the possibility of copyright infringement.
It can moderate the tactical use of email and voice mail systems by unions.
It can protect against the future discovery of stored communications and the use of these communications in litigation.
It may allow an employer to take needed disciplinary action against employees who misuse electronic communications.

Characteristics

In order to provide all possible benefits, a company policy on electronic communications should do the following:

Clearly communicate to employees that the security of email, voice mail, and electronic communications is not guaranteed. The policy should inform employees that the employer may override individual passwords and codes and may require employees to disclose all passwords and codes to the employer to facilitate such access.
Explain the employer’s monitoring procedures and how they will be used.
Provide for limited, authorized access to email, voice mail, and electronic communications, defining the scope of authorization.
Stipulate that electronic and telephone communications — including email, voice mail, and electronic communications and the contents of an employee’s computer — are the sole property of the employer.
Identify the reasons for surveillance and the specific business purposes to be achieved. These could include preventing excessive personal use of the company’s systems, monitoring employees’ service and their effectiveness with clients and customers, assuring compliance with company policies, and investigating conduct or behavior that may be illegal or that may adversely affect the employer or the welfare of the employees.
Stipulate that by using the employer’s email and voice mail systems and other equipment, including company computers, an employee knowingly and voluntarily consents to being monitored and acknowledges the employer’s right to conduct such monitoring. It is also advisable to obtain from each employee a signed acknowledgment for indicating the employee’s consent to such monitoring.
Prohibit use of the employer’s email or voice mail system for personal messages, solicitation of employees, or distribution of information not related to the employer’s business, with the exception of short informational messages or information posted on a designated computer “bulletin board.”
Prohibit communications that may constitute verbal abuse, slander, defamation, or trade disparagement of employees, customers, clients, vendors, competitors, or others.
Prohibit offensive, harassing, vulgar, obscene, or threatening communications, including disparagement of others based on race, national origin, marital status, sex, sexual orientation, age, disability, pregnancy, religious or political beliefs, or any other characteristic protected under federal, state, or local law.
Prohibit employees from creating, distributing, or soliciting sexually oriented messages or images, unwelcome sexual advances, requests for sexual favors, or other unwelcome conduct of a sexual nature.
Prohibit the distribution or printing of copyrighted materials, including articles and software, in violation of copyright laws.
Prohibit the exchange of trade secrets, exclusive/private information, or any other confidential information via email. Communications that may be privileged (for example, communications to in-house counsel that may be subject to attorney-client privilege) should be clearly identified as such.
Prohibit employees from accessing or attempting to access the email or voice mail system of another user or from transmitting messages from a co-worker’s email or voice mail system.
Explain the significance of the “Delete” and “Wastebasket” functions and describe procedures for ensuring the permanent destruction of email, voice mail, and electronic communications when desired.
Inform employees of the potential discovery of stored email, voice mail, and electronic communications, including the use of such messages for litigation against the organization. Simply by promoting this understanding, employers may encourage the cautious and appropriate use of email, voice mail, and electronic communications systems.
Explain to employees that any email messages sent externally that could be interpreted as stating a company position, policy, or viewpoint must be approved in advance by the appropriate company official.