WORKPLACE LAW -
Disciplining Employees
for Inappropriate Internet Communications
Question:
Our company’s employees spend a decent amount of time working on the internet, which is consistent with their job duties. However, some of our employees have made inappropriate comments in e-mails and on their social networking websites regarding co-workers, company practice, and company officials. What legal rights do we have to discipline employees based on the content of those internet communications?
Answer:
In the age of e-mail, instant messaging, MySpace, Facebook, and Twitter, regulating the communications of employees is more challenging than ever. When implementing policies and procedures, employers must keep in mind an employee’s rights under state and federal law. For example, an employee has the right to privacy and the right to freedom of speech under the California Constitution and the United States Constitution. Moreover, an employee has the right to engage in lawful off-duty conduct pursuant to the California Labor Code, and the right to engage in concerted activity under the National Labor Relations Act.
Nonetheless, employers may implement policies restricting or barring the use of e-mail, social networking websites, blogs, and other forms of online communication during work time and while employees are communicating within the scope of their employment. Among other topics, employment policies should define appropriate behavior on social networking websites and explain that company computers may not be accessed for personal use during working hours. Furthermore, employment policies should state that the company will monitor social networking websites and that public comments and postings will be viewed by management.
Employment policies should also clearly explain that in addition to verbal, physical, and visual actions, online communications can form the basis for a harassment or discrimination claim. Specifically, blog posts, messages, and tweets from one co-worker to another may be offensive and unwelcome, and in the aggregate, may constitute actionable harassment. Employment policies should make it clear that complaints of harassment and discrimination based on internet activity will be documented and investigated in the same manner as traditional complaints. Moreover, such policies should explain that an employee will be disciplined accordingly if an investigation concludes that the employee engaged in internet-based harassment or discrimination.
In addition, public employers may lawfully discipline employees who use company e-mail inappropriately. In Kaye v. Board of Trustees of the San Diego County Public Law Library, the plaintiff, a reference librarian, sent an e-mail to his supervisor and to co-workers criticizing his superiors and the governance of the reference department of the library. The e-mail contained unfounded accusations and insults, including allegations regarding potential false reimbursement claims.
The day after sending the e-mail, the plaintiff was placed on administrative leave. A pre-termination administrative hearing was conducted, which resulted in a finding that the e-mail constituted insubordination and serious misconduct, justifying termination. Subsequently, the Board of Trustees terminated the plaintiff. In the Board’s view, the e-mail appeared intentionally calculated to disrupt the office, undermine the authority of the Director, and impinge upon working relationships within the library.
The plaintiff sued the Board of Trustees on numerous grounds, including whistle-blower laws and the free speech provisions of the California Constitution. Under the California Constitution, “every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” The trial court held that the Board of Trustees did not violate the law, and dismissed the plaintiff’s claims.
In affirming the trial court’s decision, the Court of Appeal explained that discharging the plaintiff did not violate the California Constitution’s free speech clause. The Court explained that when public employees make statements pursuant to their official duties, those employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The Court further explained that plaintiff’s discharge did not violate the whistle-blower protections of the California False Claims Act, as plaintiff’s e-mail was “based on speculation and inaccurate assumptions” that were not in furtherance of a false claims action.
Employers should address potentially problematic internet communications in their employment policies. Effective policies may deter inappropriate internet communications and provide employers with legal support for the disciplinary decisions they make if and when such policies are violated.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2010 Articles