The National Labor Relations Board answered "yes" to this question in Timekeeping Systems, Inc., a recent decision which exposes the unforeseen problems that unregulated e-mail use can cause for employers. The NLRB's ruling also should remind employers that federal labor law protection for "concerted activities for the purpose of collective bargaining or other mutual aid or protection" extends beyond unionized workforces.
In Timekeeping Systems, the CEO of a non-union manufacturer of data collection products sent an e-mail to all employees explaining changes to the vacation policy and indicating that the employees would be better off with the new policy. He invited employees to comment on the changes, either in person or through an e-mail response. A few days later, a member of the company's engineering team sent a reply e-mail to the CEO with copies to other engineering team members. The reply contained "some flippant and grating language" and stated that the CEO's assertions about the advantages of the new policy were false. The CEO thought the employee's e-mail inappropriate, and directed him to write a public apology or face termination. The employee would not apologize, and he was fired.
The employee filed an unfair labor charge with the NLRB, claiming that he was fired in violation of the National Labor Relations Act for engaging in protected concerted activity. The NLRB ruled that the e-mail message at issue was clearly for the purpose of arousing opposition to the policy change and constituted a concerted activity for the mutual aid or protection of the other Timekeeping Systems employees. Although the NLRB recognized that some of the language contained in the e-mail contained "arrogant overtones," it was not enough to warrant a loss of protection for the message. Timekeeping Systems was ordered to reinstate the employee with back pay.
The result in Timekeeping Systems might have been different if the company had a policy regulating employees' use of its e-mail system. Employers can take a first step toward limiting employee protection for e-mail attacks on supervisors and management policies by adopting and enforcing an e-mail policy that limits employee use of e-mail for non-business purposes. A good e-mail policy will:
- provide for periodic monitoring of e-mail to prevent abuse of the system;
- diminish employees' expectations of privacy in the messages they transmit and receive through the system;
- caution employees that messages containing off-color language, obscenities, and derogatory remarks about race, religion, sex, national origin, and age will not be tolerated; and
- outline disciplinary procedures for violations of the policy.
Finally, employers should enforce e-mail policies consistently and avoid targeting particular employees for monitoring.