Two recent cases underline the importance for employers to carefully draft and periodically review their e-mail and computer policies. In both of these cases, employers prevailed against claims brought by employees by relying, at least in part, on the precise wording of the employers’ e-mail and computer policies. In Scott v. Beth Israel Medical Centers Inc., a New York court ruled that an employer had the right to access and review all e-mails sent and received over the employer’s computer system, including those between a former employee and his attorneys. In The Register-Guard, the National Labor Relations Board (“NLRB” or the “Board”) ruled that an employer did not violate federal labor law by disciplining an employee for sending e-mails on the company’s computer system that solicited support for a union.

Protect Your Company’s Right to Monitor and Access Everything on Its Computer Systems

In Scott v. Beth Israel Medical Centers Inc., 847 N.Y.S.2d 436 (Oct. 17, 2007), Dr. Scott sued his former employer, Beth Israel Medical Center, alleging, among other things, that the hospital breached its contractual obligation to pay Dr. Scott $14 million in severance for discharging him without “cause.” After conducting a computer forensic examination of Dr. Scott’s work computer, the hospital’s attorneys uncovered a stash of e-mails between Dr. Scott and his lawyers. Scott’s lawyers later filed a motion with the court seeking a protective order for the return of these e-mails, claiming that they were protected by the attorney-client and work product privileges.

The court denied Dr. Scott’s motion, ruling that based on the hospital’s e-mail policy, Dr. Scott should not have expected his e-mail communications to be confidential or private. The court noted, in particular, that the hospital’s policy provided that all computer, voice, and electronic systems were to be used for business purposes only and that no employee had any personal privacy right in anything on these systems. Based on this, and even though there was evidence that other employees had used the hospital’s computers for non-business purposes, the court ruled that Dr. Scott was not entitled to assert any privilege over his prior e-mail communications at work. The hospital thus can use these e-mails to its advantage in defending against Dr. Scott’s lawsuit.

Protect Your Company’s Right to Prohibit Union Solicitation Using the Company’s E-mail Systems

In The Guard Publishing Company, d/b/a The Register-Guard, 351 N.L.R.B. No. 70 (December 16, 2007), the NLRB issued a much anticipated ruling regarding the rights of unions to solicit support in the new age of electronic communications. A 3-2 majority of the Board ruled that an employer has a property right to prohibit an employee from using its e-mail systems to solicit other employees to support a union. In this case, the Board ruled that Register-Guard did not violate the National Labor Relations Act by issuing two written warnings to employee Suzi Prozanski for sending e-mails to other employees soliciting support for a union. The issue came down, in part, to Register-Guard’s e-mail policy, which, in this case, wisely prohibited the use of e-mail for “non-job-related solicitations.” The Board held that just as employers are allowed to restrict union-related use of company bulletin boards and phone systems, so too are they allowed to restrict similar uses of an employer’s computer systems.

The Board’s majority held that Register-Guard did not violate the law by disciplining Prozanski for two e-mails she sent—even though the company had a practice of permitting various personal, non-work-related e-mails over its computer system. The Board drew a distinction between such things as “for-sale” notices, wedding announcements, and solicitations for the United Way, on the one hand, and group or organizational postings, such as those related to a union, on the other. There was no evidence that the latter type of e-mails had been allowed in the workplace. The majority agreed with the dissent, however, that Register-Guard violated the law by issuing a third disciplinary warning to Prozanski for sending an e-mail that was viewed by the Board not as a solicitation, but rather as a “clarification” of facts surrounding a recent union event.

The “Take-Away”

Despite the favorable outcomes in Scott and The Register-Guard, employers should not assume that employees have no privacy rights at work or that it is always permissible to discipline employees for sending union-related comments over e-mail. To the contrary, the law regarding electronic communications differs across jurisdictions and, in many regards, has not yet congealed fully. Thus, neither the decision by a single New York judge nor one by a slim majority of the notoriously partisan NLRB should necessarily be seen as representing the final word on these issues. However, at minimum, the cases likely will be often cited, and do point out the need for employers, in conjunction with their counsel, to carefully draft e-mail and related policies. By doing so, employers put themselves in the best possible position as the law develops and as issues may arise. Neither the employer in Scott nor The Register-Guard would have prevailed absent a carefully crafted policy.