Parry Aftab, Esq.,
The Privacy Lawyer™
managing cybercrime, privacy and cyber-abuse risks

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Workplace Privacy: E-Mail protected by National Labor Relations Act.

E-Mail, designed to hasten workplace communications, has been giving employers various issues of concern. These range from the quagmire that time may be wasted rather than saved, to questions regarding the impropriety of certain E-mail messages. Among other examples, off-color E-Mail comments by supervisors raise sexual harassment in the workplace concerns. Moreover, there are the challenges associated with drafting policy for monitoring inter-office E-Mail that does not alarm workers screaming for privacy. Add to this boiling pot an often overlooked case decided February 1997, namely, Timekeeping Systems, Inc., 154 LRRM 1233 (BNA 1997).

In Timekeeping, a worker criticized a CEO proposed vacation policy change via E-Mail message to co-workers. Citing the E-mail criticism as inappropriate, the executive instructed the worker to make a public apology or face termination. After the employee refused to apologize, he was fired.

The worker filed a charge with the National Labor Relations Board. The NLRB ruled that the E-mail communication was protected concerted activity and ordered his reinstatement with back pay. Section 7 of the Act protects "concerted activity for the purpose of bargaining or other mutual aid or protection" (emphasis added). Overruling the company's argument that the message was primarily insubordinate, the Board found that the employee was trying to clear confusion about the revised vacation policy and enlist the support of co-workers in maintaining the policy they were then enjoying.

It is important to note that having a strict BUSINESS ONLY policy in place that was uniformly enforced may have prevented the above summarized result.  Also note that monitoring e-mails has been held by the NLRB to be a collective bargaining issue. Want to read more about e-mail policies?

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Copyright © 2005 Parry Aftab
Last modified: 02/04/07
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