In this era of electronic communications, the issue of how to keep an eye on employees’ e-mails comes up with more frequency than ever. Employers have the right to manage and control e-mail systems. But make sure you follow federal laws as you do it. That’s not always the easiest thing. The interpretation of laws often changes as courts issue new rulings. In fact, a recent ruling will impact employers’ ability to keep control of their e-mail systems.
The U.S. Court of Appeals for the District of Columbia Circuit recently ruled on a case involving a newspaper’s ability to restrict employees’ non-work-related use of the company e-mail system. Specifically, the newspaper’s policy said employees could not use company communication systems for “commercial ventures, religious or political causes, outside organizations or other non-job-related solicitations.” An employee was sending union-related e-mails on the company system. The company fought it. But the court ruled that the company discriminated in enforcing its policy.
For example, it allowed employee solicitation for sports tickets, even though it tried to prohibit union solicitations by e-mail. The ruling and other existing laws and rulings leave employers with a few options in regulating employee e-mail use. The most straightforward is to simply ban all non-business use of the employer’s e-mail system. But that system is often impractical and it also can easily lead to morale problems in the workplace, according to Atlanta-based law firm Fisher & Phillips. Employees might have trouble arranging for child care or lining up medical appointments, for example, without access to e-mail. Further, Fisher & Phillips said in a recent newsletter article that courts and regulatory bodies might not find such a rule legal anyway.
Employers could also choose to ban all organizational solicitations, Fisher & Phillips said. This would eliminate the union organizing use of e-mail while still allowing personal solicitations. However, as in the newspaper case, there is some question whether that kind of distinction is legal. A third option is to ban all solicitations by e-mail, except for a few specific annual functions. This would allow e-mail use for United Way fund drives and other similar events. That way, employers could consistently enforce the policy. The problem, Fisher & Phillips says, is that many companies want to solicit for other causes, as such instances arise. That could make this option more harmful than helpful.
Finally, employers can adopt policies focused on how much work employees are doing. In other words, if employees are spending too much time using e-mail or browsing the Internet for personal purposes during work hours, that would likely show up in their productivity. That type of policy is neutral and easier to enforce. “If an employee is spending excessive time sending personal e-mails or searching the Internet, that will likely warrant discipline, regardless of the content involved,” Fisher & Phillips said in its newsletter. Companies that do have unions or union organizing activity among their labor force will want to be aware that any policy changes enacted after union activity takes place are often viewed as being anti-union in nature. Fisher & Phillips tells employers to be certain they are consistent in their enforcement of e-mail and other employee solicitation policies. Take early action to make sure your e-mail policies are consistent, enforceable and work best to enhance the productivity of employees at your company. That will ensure that your e-mail system is used primarily for its intended business purposes.