HR Management & Compliance

Complaining Employees: Firing Workers Who Use E-Mail To Gripe Is Now Risky

E-mail has fast become an efficient and popular way of communicating in the workplace. But it has also raised legal issues for employers, ranging from privacy problems to possible liability for harassment when employees use e-mail to send off-color messages. Now there’s a new concern: if an employee sends an e-mail message criticizing your personnel policies, do you have grounds to discipline the person? A new ruling indicates that the answer may be no.

In what may be the first case of its kind, a non-union employer was found to have violated the National Labor Relations Act when it fired an employee who knocked company policies via e-mail. We’ll explain what the case means to you and how to recognize when you need to use special caution before imposing discipline.

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Broad Employee Protection

The National Labor Relations Act (NLRA) applies to most union and non-union employers, regardless of how many employees you have. It protects workers’ rights not only to engage in union-related activities but also to join together to protest or seek changes in the terms and conditions of their employment.

Employee Fired For Sending Harsh E-Mail

In the recent case, Timekeeping Systems, Inc. sent its employees an e-mail message describing proposed changes to the company’s vacation policy, including an increase in the number of days allowed each year. Workers were invited to comment.

One employee, Lawrence Leinweber, fired back an e-mail to the CEO criticizing the new policy. He argued that it would add no more paid days off and would decrease flexibility. Then, after another employee praised the proposed policy via e-mail, Leinweber sent a company-wide e-mail, saying the employer’s assertions regarding the benefits of the new vacation policy were false. Timekeeping asked Leinweber to apologize. He refused and was fired.

NLRA Safeguards Employees

Leinweber filed a complaint with the National Labor Relations Board, which enforces the NLRA. The board ruled that employees’ use of e-mail to try to change the terms and conditions of their employment is a “protected activity” under the law.

According to the board, Leinweber’s e-mail was trying to enlist co-workers’ aid to preserve the old vacation policy which he felt was better for employees. And, even though the message had arrogant overtones, it was not so intolerable as to justify the loss of his protections under the law. The board, therefore, ordered the company to rehire Leinweber and pay him his lost wages.

What To Do Now

Although this ruling may seem unusual, it is consistent with the NLRB’s traditional, broad approach to defining protected activity. What’s unique here is that this is the first case which involves the use of e-mail. Also, because e-mail can potentially reach so many people at once, it is likely to be used even more frequently by employees to enlist co-worker support for complaints involving workplace issues. And this decision gives workers significant legal protection.

If an employee sends an e-mail message you consider inappropriate, you’ll need to evaluate whether federal law shields the conduct. If it does, you must not take any action against the worker that could be considered retaliatory. Answering “yes” to each of the following indicates the activity is probably protected:

  1. Does the message relate to the terms and conditions of employment? Employee complaints about workplace health and safety, wages, hours, benefits, discipline, and union organizing are covered by the NLRA.
  2. Is group activity involved?

    The law protects only group activity. A protest made on behalf of just one worker probably isn’t covered. But if an employee acts with others or seeks to get the support of co-workers, as happened in the Timekeeping Systems case, the conduct is likely to be protected.

  3. Was the message non-threatening? Even rude and sarcastic statements by employees will usually be shielded by the law. For example, the board protected an employee who called supervisors “a-holes” and a worker who referred to a company executive as a “cheap son of a bitch.” But when an employee’s language or behavior becomes threatening, violent or extremely disruptive, you have the right to take action to stop it.