Workplace Communications Bring
Host of New Legal Issues

The Information Age has seen a radical transformation in the way we communicate with each other.  Nowhere is this transformation more evident -- and potentially more problematic -- than in the modern American workplace.   Memos, faxes, and even in-person meetings have been replaced by e-mails, instant messaging and video-conferencing.  These new forms of communications have all the informality and spontaneity of casual conversations, but often the permanence of written documents.  (Just ask Enron if you have any question about the permanence and power of e-mail).

This dramatic change in the way we communicate with each other in the workplace has brought with it a host of new legal challenges faced by employers and employees alike, such as:

• When can employers monitor their employees' use of e-mail or the Internet to track their performance or behavior?
• When must employers do so?  For example, there was a well-publicized decision in New Jersey a few years ago holding that an employer  could be liable for defamatory comments made on a message board used by its employees against a fellow employee.  In addition, a growing number of cases filed in federal court make reference to some offensive remarks alleged to have been made over the employer's e-mail system as evidence of unlawful harassment.  
• When can employees -- and their union representatives -- use an employer's computer system against it for purposes of conducting a union organizing drive? 

An employer's right to monitor computer communications -- whether e-mail or Internet usage -- for business purposes is clear under the Electronic Communications Privacy Act, which was passed in 1986.  What is less clear, though, is whether and to what extent an employer can limit the use of e-mail by employees for non-business-related reasons, including for union organizing.  The National Labor Relations Board  recently held oral arguments on a case presenting precisely this issue, and its  eventual decision can completely change the parameters of union organizing in office environments.

Legislation has been in Congress on a number of occasions to place greater limits on the ability of employers to monitor computer usage for productivity or behavioral reasons.  However, there has not been sufficient bipartisan support to move that legislation forward in the past.  This is one of a number of employment-related issues that could greatly be affected by the outcome of elections in 2008 and bears watching. 

Michael L. Tooley is a partner at Ice Miller LLP. Mike is part of the Labor Practice Group and represents employers in all aspects of labor relations and employment-related matters. If you have questions regarding workplace communications please contact Mike at michael.tooley@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.