In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding performance improvement plans (PIPs), the challenge of perceived retaliation, and the importance of building a clearly defined employee policies.
Q: We have an employee who is on a performance improvement plan, and is consistently sending out divisive and mean-spirited emails. This employee often accuses leadership of harassment so we want to make sure our policies could not be deemed as retaliation or harassment. One solution that I have is a directive to have all internal emails that are directed to “All staff” be approved by a manager, and that a manager must be cc’d on all of their emails. There emails are having a negative impact both internally and with our external partners. Are there any potential internal solutions and or policy suggestions to explore?
There are several potential issues and areas of discussion to consider in this inquiry, so let’s address them one-by-one.
Potential Issue #1: Privacy
First, let’s cover the review of the employee’s e-mail from a privacy standpoint. Employers have any number of reasons to monitor their employees’ e-mail and computer use. But improper monitoring can violate the Electronic Communications Privacy Act (ECPA) and/or invade employees’ privacy. Without an explicit company policy to the contrary, employees generally maintain some expectation of privacy in their e-mail and text messages logged on company phones.
Often when an employer discovers, then approaches, an employee about comments made in a communication the employee didn’t intend to be made public—for example, comments on social media or via e-mail—the employee may initially become defensive and upset that the employer “invaded his or her privacy.”
Whether an employee of a private (non-government) employer can even claim a right to privacy in the first place will depend on the state of operation and the protections that state has extended to individuals, typically via the state constitution and case law. Detailed information on the privacy rights of employees for Missouri is available in the Missouri topical analysis on privacy.
Fortunately, even when individuals can claim a right to privacy, there is one overarching requirement for that right to stand, which is that the expectation of privacy be “reasonable.” In other words, if it is not reasonable for a person to expect his or her communication or activity to be private, then there can be no claim that such “privacy” was violated, regardless of the employer’s state of operation, the workplace environment, etc.
Because reasonableness is a sliding, subjective scale, the most reliable way to avoid claims of invasion of privacy is to remove any expectation of privacy in the first place. In the context of a developing and uncertain body of law, it is important for employers to establish a policy regarding the monitoring of electronic communications, specifically Internet and e-mail, and communicate that policy clearly to employees.
Potential Issue #2: Discrimination
Next, there is the issue of discrimination—would the employee have a discrimination claim for being the only employee against whom this e-mail review was taken (or, if disciplined/terminated, against whom that action is taken).
First, in order for the employee to raise a valid claim of discrimination he or she would have to be a member of a protected class or category (age, race, gender, disability, leave status, etc.) and he or she would have to show that the employment action taken against him or her—but not other employees who were not members of that protected class—was based upon that protected status.
Second, you indicated the reason this employee’s e-mail is being reviewed is due to concerns over the content of the emails being divisive and/or mean spirited—perhaps a valid, business-based reason to conduct a workplace investigation. Presumably this action also would have been (and will, if necessary in the future, be) taken against any other employees who were exhibiting similar communication problems.
The same would be true of any corrective action taken based on the findings of that e-mail investigation. If the employee was to be terminated, this decision would not be based on protected status but, rather, on the violation conduct standards found during the investigation.
Potential Issue #3: Protected, Concerted Activity
With all of this information at hand, there is one area of concern that has not yet been addressed, and that is the increasingly broad protection of employees’ “concerted activity” as covered by the National Labor Relations Act (NLRA).
The NLRA generally applies to unionized workforces; however, its protection of employee “concerted activity” extends to non-union employers as well. If needed, a detailed discussion of the Act and its protections is available on the topical analysis page on HR.BLR.com.
The key takeaway is this: Though private employees do not have “First Amendment” rights to free speech, employees have been found to have incredibly broad rights to criticize—even using employers’ e-mail systems—workplace conditions and policies under the NLRA. In fact, the NLRA protects employees’ rights to discuss those workplace conditions even if the employees never actually do so. Thus, the NLRB (the agency that enforces the NLRA) has struck down employer policies as well as employer practices if such policies could reasonably “chill” employees from exercising their right to discuss terms and conditions of employment (e.g., complain and vent).
Therefore, there could be problems in disciplining this employee for his or her remarks if those remarks could be interpreted to be complaints about the workplace, pay, conditions, staffing choices, etc. (even if the language used is otherwise inappropriate and vulgar).
This, of course, would be a fact-specific determination based on the actual contents of the e-mails. Some language—for example, obviously threatening, violent, or harassing language—would not be protected. Other language—for example, complaints about pay or promotion decisions—would be protected. Of course, the bulk of the communication will likely fall in a grey area in between and will require your company to make a judgment call (or to opt for appropriate sensitivity, diversity, anti-harassment, or similar counseling rather than disciplinary action).
If you do have such a policy, you may also wish to review it to ensure that (a) it is specific as to the type of language/conduct that is prohibited and (b) that it includes disclaimer language to notify employees that the policy is not intended to interfere with NLRA rights.
Potential Issue #4: Potential for Liability
The most important step, regardless of the employment action eventually taken, is for an employer to carefully document its adherence to policy and the business-related (non-discriminatory) reasons for any and all employment actions.
In the information you have provided, you noted that the employee exhibited previous performance problems. Therefore, maintaining records of these problems—and any corrective actions taken prior to the e-mail investigation—is a key step.
Because the language in the e-mails—and whether discipline is warranted based on that language—is subjective, it may be best for any disciplinary actions to focus on tangible, objective performance issues. For example, perhaps the documented issue is the amount of time this employee is spending on non-productive e-mails, rather than the specific, possibly NLRA-protected contents of those messages.
It is also important to ensure that your policies are being applied fairly and consistently. For example, though we have discussed that it is unlikely that this employee would have a valid discrimination claim for being the only employee whose e-mail had been investigated, this may not be the case if there are other employees who also exhibited similar problems, but whose deficiencies have been overlooked.
As a best practice, employers’ best means of mitigating risk of successful legal claims is to establish consistent workplace practices, to apply workplace policies fairly, and to reduce the appearance of random, haphazard, or targeted application.
Failing to give employees notice that they are (or might be) monitored is an open invitation to be sued for invasion of privacy, violations of the ECPA or NLRA, or constitutional violations. On the other hand, having a written monitoring policy that is effectively communicated to employees can be your best defense against such claims.
Depending on the wording, an employer’s policy can accomplish two things:
- It can give employees’ consent to monitor their e-mail, protecting the employer from liability under the ECPA.
- It can reduce or eliminate employees’ expectation of privacy, making it difficult for them to sue for invasion of privacy.
You will find a model “Use of Communications and Computer Systems” policy in the Employee Handbook Builder component of HR.BLR.com that you can tailor to your organization’s needs. As with all new policies, you should have your local attorney review the policy before you distribute it to employees.
Overall, because there are several elements of this situation that are subjective in nature—particularly the contents of the e-mails—if further disciplinary action is taken, we recommend doing so under the guidance of your local attorney who can review the factual elements and provide specific advice.
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