Category Archives: Technology and the Workplace
Yes – employers generally can monitor employee emails sent using an employer-provided account, but it’s best for employers to take certain steps to ensure that the monitoring is lawful.
Whether an employer can monitor employee emails sent using company email typically depends on whether the employee has a reasonable expectation of privacy in the emails. One of the leading cases on this subject is In re Asia Global Crossing, Ltd., in which the court developed a four-factor test for analyzing whether an employee’s emails are subject to a reasonable expectation of privacy. 322 B.R. 247 (S.D.N.Y. 2005). The court held that the four factors that should be considered are:
- Does the corporation maintain a policy banning personal or other objectionable use?
- Does the company monitor the use of employee’s computer or email?
- Do third parties have a right of access to the computer or emails?
- Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?
The four factors make clear that an employer will have a much greater likelihood of defeating any alleged expectation of privacy in company emails if the company maintains a policy that clearly communicates to employees that the employer reserves the right to monitor and access employee emails and that employees should have no expectation of privacy in their use of company-provided email accounts.
Other potential options that employers can use to eliminate any ambiguity regarding the non-private nature of employee emails are: (i) requiring employees to sign an acknowledgement stating that they have no expectation of privacy in company emails; (ii) using on-screen warnings when an employee logs on to his or her computer warning that emails are subject to monitoring; or (iii) providing periodic trainings to employees that reinforce the company’s email-monitoring policy.
Takeaways: Employers who want to safeguard their right to access and monitor employee emails should make clear their intent and warn employees not to expect privacy in their emails, either by adopting an email monitoring policy or through other steps.
NLRB Holds That Employees Have A Presumptive Right To Use Employer-Provided Email For Union Organizing
Reversing a previous 2007 decision, the National Labor Relations Board (NLRB) recently held that employees have a presumptive right to use employer-provided email systems for union organizing and other protected, concerted activities.
In Purple Communications, Inc., the NLRB held that “[w]e adopt a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify special restrictions.” 361 NLRB No. 126 (Dec. 11, 2014). This includes the right under Section 7 of the National Labor Relations Act (NLRA) to engage in union organizing and other protected, concerted activities. 29 U.S.C. § 157. The NLRB’s decision in Purple Communications reverses its prior decision on this subject in Register Guard, 351 NLRB 1110 (2007).
The NLRB explained its decision by stating that “email is the most pervasive form of communication in the business world,” and that “[s]ome personal use of employer email systems is common and, most often, is accepted by employers.” The NLRB concluded that email has become a “natural gathering place” for employee-to-employee conversations and, therefore, should accommodate the exercise of Section 7 rights by employees. The NLRB also decided to apply this new rule retroactively.
The NLRB’s new holding in Purple Communications has some important limitations, including the following:
- Employers are not required to provide email to employees.
- The rule only authorizes employees to send Section 7 communications during nonworking time, not during working time.
- The rule only applies only to email, not other electronic communications systems that employers may provide.
- The rule only applies to employee use of email. It does not authorize non-employees to access employer-provided email.
- An employer may rebut the presumption that employees should be able to send Section 7 communications via employer-provided email by showing that “special circumstances make the presumption inappropriate in its workplace.” However, the NLRB cautions that “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”
- Short of a total ban on nonwork email use by employees, employers may still maintain “uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.” However, to justify a particular restriction, the employer must be able to “demonstrate the connection between the interest it asserts and the restriction.”
- Employers may still “monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.”
Takeaway: Subject to certain limitations, employees now have a presumptive right to use employer-provided email during nonworking time to send communications related to union organizing or other concerted and protected activities under Section 7 of the NLRA. However, the ruling leaves open a number of unanswered questions, such as what “special circumstances” might justify a total ban on nonwork email use. This question, and others, will likely be answered through future NLRB litigation.
A recent decision from the U.S. District Court for the District of Minnesota clarified that an employer’s failure to remove a former employee from a company website does not constitute unlawful appropriation, unless it’s intentional.
Appropriation is one of three torts that fall under the umbrella term of invasion of privacy. The tort occurs when one person appropriates to his or her own use or benefit the name or likeness of another.
In Wagner v. Gallup, Inc., the plaintiff alleged that his former employer was liable for appropriation because it failed to update a reference to him on its website from a “principal of Gallup” to a “former principal of Gallup” after his departure. The plaintiff conceded that he consented to the employer’s posting of information about him on the website at the time it was made and during his employment. Civ. No. 12-CV-01816-JNE-TNL (D. Minn., June 20, 2014).
The court dismissed the plaintiff’s claim for appropriation because there was no evidence that the failure to remove the website’s reference to the plaintiff was intentional. The court explained that “the appropriation tort is an intentional one,” and that the plaintiff must show the defendant “acted intentionally in appropriating his name to prevail on his appropriation claim.” Because there was no evidence that the employer acted intentionally, the plaintiff’s claim failed. The court also noted that plaintiff’s claim would likely fail because there was no evidence of damages.
Takeaway: In most cases, failing to remove an employee’s name or image from a company website after termination will not support a claim for appropriation, unless there is evidence that the appropriation was intentional.
In April of 2014, Wisconsin became one of the latest states to pass legislation prohibiting employers from requiring access to employee or applicant social media accounts as a condition of employment. See 2013 Wisconsin Act 208. The new law in Wisconsin provides that employers generally may not:
- Request or require an employee or applicant for employment, as a condition of employment, to disclose access information for the personal Internet account of the employee or applicant or to otherwise grant access to or allow observation of that account;
- Discharge or otherwise discriminate against an employee for exercising the right under subd. 1. to refuse to disclose access information for, grant access to, or allow observation of the employee’s personal Internet account, opposing a practice prohibited under subd. 1., filing a complaint or attempting to enforce any right under subd. 1., or testifying or assisting in any action or proceeding to enforce any right under subd. 1; or
- Refuse to hire an applicant for employment because the applicant refused to disclose access information for, grant access to, or allow observation of the applicant’s personal Internet account.
The law includes a number of exceptions. For example, the law allows employers to:
- Request or require an employee to disclose access information to the employer in order for the employer to gain access to or operate an electronic communications device supplied or paid for in whole or in part by the employer or in order for the employer to gain access to an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes;
- Discharge or discipline an employee for transferring the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account without the employer’s authorization;
- Conduct an investigation or require an employee to cooperate in an investigation of any alleged unauthorized transfer of the employer’s proprietary or confidential information or financial data to the employee’s personal Internet account, if the employer has reasonable cause to believe that such a transfer has occurred, or of any other alleged employment-related misconduct, violation of the law, or violation of the employer’s work rules as specified in an employee handbook, if the employer has reasonable cause to believe that activity on the employee’s personal Internet account relating to that misconduct or violation has occurred – if this occurs, an employer may require an employee to grant access to or allow observation of the employee’s personal Internet account, but may not require the employee to disclose access information for that account;
- Restrict or prohibit an employee’s access to certain Internet sites while using an electronic communications device supplied or paid for in whole or in part by the employer or while using the employer’s network or other resources;
- Comply with a duty to screen applicants for employment prior to hiring or a duty to monitor or retain employee communications that is established under state or federal laws, rules, or regulations or the rules of a self-regulatory organization, as defined in 15 U.S.C. 78c(a)(26);
- View, access, or use information about an employee or applicant for employment that can be obtained without access information or that is available in the public domain; or
- Request or require an employee to disclose the employee’s personal electronic mail address.
Similar legislation has been introduced in Minnesota before, but has never passed into law. Other states with similar laws include Arkansas, California, Colorado, Illinois, Maryland, Michigan, New Jersey, New Mexico, Nevada, Oregon, Tennessee, Utah, and Washington.
Takeaway: Wisconsin’s new law represents an ongoing trend in social media privacy legislation that began several years ago. However, many people have questioned the utility of these laws. Apart from a few isolated examples, there does not seem to be evidence that it is a common practice for employers to demand access to personal social media accounts of employees or applicants.
A federal district court in California recently held that an employer could subpoena a former employee’s cell phone records as part of discovery in a pending lawsuit.
In Kamalu v. Walmart Stores, Inc., the plaintiff sued her former employer, alleging discrimination on the basis of national origin, race, and sex, and wrongful termination in violation of public policy. The employer asserted that the plaintiff’s termination was based on legitimate business reasons, including that the plaintiff was terminated for stealing time and misrepresenting her working hours. To obtain evidence to show that the plaintiff was using her cell phone when she should have been working, the employer issued a subpoena to her cell phone provider and requested the following documents:
- All incoming and outgoing cellular phone and text message records for the employee’s phone number during her employment;
- All records regarding any data used by the device associated with the employee’s phone number during her employment; and
- Invoices for the employee’s phone number during her employment.
In response, the plaintiff brought a motion to quash the subpoena, which the district court denied. The district court held that the records were “directly relevant to Defendant’s defense that Plaintiff was terminated for misrepresenting her working hours.” The court also held that the records could potentially support a defense based on after-acquired evidence, even if the plaintiff was never counseled for improperly using her cell phone during her employment.
The court also rejected the argument that the subpoena unnecessarily invaded the plaintiff’s privacy rights, emphasizing that the subpoena only sought information about what calls or messages occurred and how long they were, but not the content of any of the communications. In addition, the court held that the plaintiff had no expectation of privacy in business records maintained by a third-party to whom she voluntarily conveyed the information.
Takeaway: In certain cases, an employee’s cell phone records may provide valuable information that can assist an employer in defending against the employee’s claims. The Kamalu decision supports the ability of an employer to subpoena these records provided that it can establish the relevancy of the records to the litigation.
Yes – employers can require assignment of employee inventions under Minnesota law, but there are important statutory limitations on that right that employers need to know. Minnesota law provides that any assignment in the ownership rights of employee inventions may not apply to:
[A]n invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee’s own time, and (1) which does not relate (a) directly to the business of the employer or (b) to the employer’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by the employee for the employer.
Minn. Stat. § 181.78. The statute further provides that any agreement for assignment of invention rights that purports to apply to inventions that meet the criteria listed above is “void and unenforceable.”
In addition, if an employment agreement contains a provision requiring the employee to assign or offer to assign any of the employee’s rights in any invention to an employer, the employer must, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to inventions that meet the criteria listed above.
Takeaways: Employers who require assignment of employee inventions should: (1) make sure that their agreements relating to the assignment of inventions comply with the statutory exclusions created by Minnesota law: and (2) make sure to provide the written notification required by the statute for employees who are subject to assignment agreements.
Many employers have implemented telecommuting policies and agreements to stay current with human resources trends, take advantage of communication technologies, improve retention and recruiting, and reduce overhead. Often it has worked brilliantly, with some estimates that 10% of the working population work from home at least one day a week.
But employment lawyers see that when telecommuting doesn’t work, it really doesn’t work. There can be many policy enforcement complications, performance review barriers, and estrangements from normal workplace discipline and personal development.
Given such complications, the bloom may be coming off the rose, a bit. Yahoo recently made news with its ban on telecommuting. Best Buy followed by imposing significant restrictions on its flexible work policy.
Perhaps now is a good time for employers to review their telecommuting or alternative work policies or individual agreements. When doing so, consider the following:
- Is the policy clear in its requirements and does it reflect current realities?
- Is the policy applied in a non-discriminatory way?
- Is the policy consistent with other policies such as timekeeping, work hours, and dependent care policies?
- Are there sufficient monitoring systems?
- Do performance reviews address the differences in alternative employment arrangements?
- Are there confidentiality protections?
- Are workers’ compensation, Fair Labor Standards Act, and state income tax reporting requirements addressed?
- What are the conditions for termination of the arrangements?
Takeaways: This is just a beginning checklist — but with the trend perhaps trending down, it may be the right time to double-check your policies and individual agreements. And use your legal counsel in the process (even if he or she is working from home!).
On March 26, 2012, Representative Mary Franson proposed legislation that would make it illegal for employers in Minnesota to require applicants or employees to provide passwords or other account information related to their social networking websites. The text of the proposed legislation is as follows:
No person, whether acting directly or through an agent, shall require, as a condition for consideration of employment, that any employee or prospective employee provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social networking Web site.
See H.F. 2963.
The practice of employers asking employees or applicants for the passwords to their social networking sites, like Facebook or LinkedIn, has been criticized heavily in the press recently. Even if the proposed legislation regarding this topic does not become law, there are some circumstances under which the practice could arguably raise invasion of privacy or Stored Communications Act concerns.
Takeaways: Even if the proposed legislation prohibiting employers from requiring employees or applicants to provide access to their social networking sites does not become law, there are potential legal risks with this practice. As a practical matter, the practice may also lead to negative media attention for employers. Employers should consult with counsel if they have further questions about this topic.
On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases. The report discusses fourteen cases relating to social media issues. Many of the cases include discussion regarding whether an employer’s social media policy is overbroad and, therefore, illegal under the National Labor Relations Act (NLRA).
Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. § 157. Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.” For this reason, it is advisable for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights. However, limiting language may not be sufficient in itself to make a social media policy lawful under the NLRA.
In the NLRB’s new report, one of the cases discussed involved an employer’s social media policy that included limiting language. The policy stated that, “in external social networking situations, employees should generally avoid identifying themselves as the Employer’s employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner.” The policy did not define or provide any examples of what constituted “appropriate” or “inappropriate” discussion of the terms and conditions of employment. The policy also included limiting language that stated that “the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”
The NLRB determined that the limiting language in the policy was not sufficient to cure the ambiguities regarding what constituted “appropriate” or “inappropriate” discussions about the terms and conditions of employment. The NLRB determined that an employee could reasonably interpret the policy as prohibiting protected Section 7 activities despite the limiting language. Accordingly, the NLRB held that the policy was unlawful.
Takeaway: To comply with the NLRA, it remains a good idea for employers to include limiting language in their social media policies to make clear that Section 7 activities are not prohibited. However, limiting language alone may not be sufficient to make a social media policy lawful if other aspects of the policy could reasonably be interpreted as restricting the exercise of Section 7 rights. When employers draft social media policies, they should think critically about all aspects of the policy in addition to including limiting language.
On January 24, 2012, the Office of the General Counsel for the National Labor Relations Board (NLRB) issued a new report concerning social media cases. The new report follows a previous report on the same subject that the NLRB published in August of 2011. The new report describes fourteen cases involving social-media related issues. The cases primarily focus on whether an employer’s social media policy was unlawfully overbroad or whether an employee was terminated for engaging in protected, concerted activity under the National Labor Relations Act (NLRA).
One of the notable aspects of the new report is its discussion of two policies which the NLRB determined did not violate employees’ rights under Section 7 of the NLRA. Section 7 of the NLRA protects employees’ rights to engage in form, join, or assist labor unions as well as to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. § 157. Social media policies may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”
Lawful Social Media Policy Example No. 1: The first policy that the NLRB found did not violate the NLRA prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.” The NLRB determined that this rule did not violate Section 7 because it appeared in a list of “plainly egregious conduct” and there was no evidence it had been applied to discipline protected activity.
The NLRB noted that the same employer’s previous social media policy did violate the NLRA. The previous policy prohibited “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” The NLRB determined that this policy was overbroad because of its use of “broad terms” such as “defamatory,” which could arguably apply to protected criticism of the employer’s labor policies or treatment of employees. The NLRB also found that the employer used the policy to discipline employees for protected conduct.
The primary difference between the employer’s lawful policy and its previous, unlawful policy appears to be that the lawful policy described prohibited conduct with greater specificity and referred to the employer’s other workplace policies.
Lawful Social Media Policy Example No. 2: The second policy that the NLRB found did not violate Section 7 provided that:
- The employer could request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws;
- Employees were prohibited from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients;
- Employees were prohibited from discussing in any form of social media “embargoed information,” such as launch and release dates and pending reorganizations; and
- Employees were prohibited from promoting the employer’s products or services online due to Federal Trade Commission (FTC) regulations.
Because of the specific examples provided in this policy, the NLRB found that employees would understand that the confidentiality restrictions related only to communications that implicate security regulations, the confidentiality of the employer’s customers, or embargoed information. With respect to the restrictions on promotional content, the NLRB held that “employees could not reasonably construe the rule to apply to their communications regarding working conditions, as they would not consider those communications to promote or advertise on behalf of the Employer.”
Takeaways: Determining whether a social media policy is overbroad in violation of the NLRA is highly dependent on context. The NLRB’s new report on social media shows that an employer’s policy is more likely to be found to be lawful if it describes prohibited conduct with specificity. Social media policies that refer to other workplace policies (e.g., anti-discrimination, anti-harassment, or confidentiality policies) or governing laws and regulations (e.g., FTC regulations) are also more likely to be upheld. As a final matter, it remains a good idea for employers to include limiting language in their social media policies to make clear that the policy does not prohibit the exercise of Section 7 rights.
In United States v. Jones, the United States Supreme Court addressed the question of whether the government violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it attached a Global Positioning System (GPS) tracking device on a vehicle registered to a criminal defendant’s wife and monitored the vehicle’s movements for four weeks. All nine Supreme Court justices agreed that the government’s use of the GPS device without a valid warrant violated the defendant’s Fourth Amendment rights, but they disagreed as to why.
The Trespass Analysis: Justices Scalia, Roberts, Kennedy, Thomas, and Sotomayor determined that the installation of a GPS device on the defendant’s vehicle constituted a physical “search” under the Fourth Amendment. Those justices held that it was unnecessary to analyze whether the defendant had a “reasonable expectation of privacy” with respect to the underbody of the vehicle where the GPS device was attached or with respect to the public roads where the defendant drove the vehicle. They reasoned that the physical intrusion of attaching the GPS device to the defendant’s vehicle was a trespass sufficient to invoke the Fourth Amendment’s protections. Therefore, attaching the GPS device to the vehicle without a valid warrant violated the Fourth Amendment.
The Expectation-of-Privacy Analysis: Justices Alito, Ginsburg, Breyer, and Kagan determined that the government’s use of the GPS device violated the defendant’s Fourth Amendment rights because it violated a reasonable expectation of privacy. While the justices stated that “relatively short-term monitoring of a person’s movements on public streets” may not violate privacy expectations, longer periods of monitoring likely impinge on reasonable privacy expectations. Therefore, the government’s use of GPS to monitor the defendant’s movements for four weeks without a valid warrant violated the defendant’s Fourth Amendment Rights.
Takeaway for Employers: Private employers are not subject to the Fourth Amendment’s prohibition against unreasonable searches and seizures. However, employees of private employers could potentially cite the United States v. Jones decision in support of an invasion-of-privacy claim to argue that GPS monitoring violated their reasonable privacy expectations. To prevent this type of claim, employers who monitor employees with GPS (whether via cell phones, company vehicles, or other GPS devices) should adopt policies to notify those employees about the GPS monitoring and that they should not have an expectation of privacy while using company property with GPS capabilities.
Section 7 of the National Labor Relations Act (NLRA) provides that employees have the rights to engage in form, join, or assist labor unions as well as “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” See 29 U.S.C. § 157. Section 7 applies to both unionized and non-unionized employers, and among other things, it generally allows employees to discuss the terms and conditions of their employment with one another.
Over the past year, the National Labor Relations Board (NLRB) has aggressively enforced employees’ rights under Section 7 in the context of social media, such as Facebook, Twitter, or LinkedIn. The NLRB has also focused on employers’ social media policies, which may violate the NLRA if they “reasonably tend to chill employees in the exercise of their Section 7 rights.”
In August of 2011, the General Counsel of the NLRB released a report addressing the issue of Section 7 rights in the context of social media. The Report describes the General Counsel’s position with respect to 14 cases involving activities that are arguably protected under Section 7 and policies that are arguably overbroad under Section 7. One of the primary takeaways from the Report is that the best way for an employer to ensure that its social media policy will not be considered to be overbroad and, therefore, in violation of Section 7, is to include limiting language in the policy to clarify that Section 7 activities are not prohibited.
In the Report, the General Counsel stated that the NLRB considers the following types of policies overbroad under Section 7:
- A policy that prohibited employees from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform, corporate logo, or company vehicle;
- A policy that prohibited employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors; and
- A policy that prohibited employees from using the company name, address, or other information on their personal profiles.
The Report also stated that the following types of policies were overbroad because they did not contain limiting language to remove potential ambiguities regarding whether Section 7 activity is prohibited:
- A policy that prohibited “offensive conduct” and “rude and discourteous behavior;”
- A policy that prohibited “inappropriate discussions” about the company, management, and/or coworkers;
- A policy that prohibited “any communication or post that constitutes embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member [of the employer];”
- A policy that prohibited “statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees;”
- A policy that prohibited employees from “talk[ing] about company business on their personal accounts . . ., posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . disclosing inappropriate or sensitive information about the Employer . . . [or] posting any pictures or comments involving the company or its employees that could be construed as inappropriate.
In addition, the Report stated that a policy that prohibited “using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity” was overbroad because the policy “provided no definition or guidance as to what the Employer considered to be private or confidential.”
Given the broad scope of the types of policies that the NLRB considers to be overbroad under Section 7, the best way for employers to reduce their potential liability is to include some limiting language in their social media policies to clarify that Section 7 activities are not prohibited. By including limiting language in a social media policy, an employer should be able to reduce the risk that the NLRB will find that its policy is unlawfully overbroad under Section 7.