Nosy Bosses Face Limits on E-Mail Spying

SAN FRANCISCO (07/26/2000) - By now most of us know that employers may legally monitor or censor messages sent over company e-mail wires. But recently, some workers have successfully challenged blanket e-mail censorship by using, of all things, the 1935 National Labor Relations Act.

In two cases that could have broad repercussions, the National Labor Relations Board's Office of the General Counsel successfully intervened on behalf of workers fired for using company e-mail in ways that upset their employers.

An Ohio worker fired for sending e-mail critical of a change in vacation policy won back pay and the option of reinstatement. In Florida, an engineer helping organize coworkers into a union was suspended for discussing related issues via e-mail. In an out-of-court settlement, his company rewrote its e-mail policy and rehired him.

Does this mean that employees are free to flame the boss at will? No. Employers have the right to monitor e-mail and set policy on use. But policies that lump communication critical of the workplace with inappropriate--and actionable--behavior (like sexual harassment) are on their way out.

The E-Watercooler

Created to safeguard workers from unfair labor practices, the NLRA also ensures workers' rights to communicate with each other about their workplace. In today's companies, e-mail is a primary means of communication, especially for employees who telecommute or travel. Even those on-site may do most of their business over a LAN. And just as offices have cafeterias or break areas where people congregate and talk, a company network has protected areas where employees enjoy the right to discuss work, says NLRB associate general counsel Barry Kearney.

Businesses may be justified in monitoring e-mail and Internet use to protect themselves from liability in cases of illegal activity, and to ensure that company time and money aren't wasted. According to Kearney, the NLRB's actions don't challenge this prerogative or represent any change in law. Both the issues and the remedies have been around for years--but they're now being applied to new technology. So the NLRB has told regional offices to direct these cases to its main branch in Washington, D.C.

The Larger Issue

Employers may be apprehensive about the NLRB's actions. But Barry Steinhardt, assistant director at the American Civil Liberties Union, doesn't think the NLRB goes far enough. In the ACLU's view, the overarching issue is e-mail surveillance, which the NLRA doesn't address.

Steinhardt also points to companies' increasing use of programs such as Webroot's WinGuardian or WinWhatWhere's Investigator to go beyond Net monitoring and record every keystroke an employee makes. The Electronic Privacy Act of 1978 prohibits wholesale monitoring of telephone services, but it does not regulate surveillance of Net and e-mail access. Furthermore, a company has no legal obligation to tell employees if it's doing computer monitoring.

"Employees think they have rights they don't have," Steinhardt says.

What To Do Now

Employees should remember that commonsense rules about e-mail still apply: NLRB officials don't have explicit guidelines for what qualifies as protected workplace communication. Written and oral critiques using strong language have been protected in the past, but context matters.

For employers, this is a good time to review e-mail policy. An overly broad policy that infringes on employees' right to discuss work conditions could provide grounds for an NLRB complaint.

As the NLRB applies old rules to new media, other branches of government are going further. The California state legislature, for example, is working on a bill that would require companies to disclose e-mail monitoring to employees.

The ever-blurring line between work and leisure will only increase the complexity of the issue for everyone.

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