Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?
This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA. In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014). Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy. See NASA v. Nelson, 131 S. Ct. 746 (2011).
Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.
The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.
The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.
The Hawaii Judiciary is proposing amendments to the Hawaii Rules of Civil Procedure (HRCP) to address e-discovery issues. The deadline for submitting comments is April 17, 2014. The proposed amendments are available here.
Some of the more notable changes being proposed are:
- The addition of references to “electronically stored information” (ESI) to Rule 26 (general discovery provisions), Rule 30 (depositions), Rule 33 (interrogatories), Rule 34 (document requests), Rule 37 (discovery sanctions and motions to compel), and Rule 45 (subpoenas)
- Amended Rule 26 expressly permits discovery of ESI with the caveat that a party need not provide discovery of ESI from sources that are not reasonably accessible because of undue burden or expense. The party claiming undue burden or expense has the burden to make that showing. However, even if the showing is made, a court may still order disclosure or discovery of ESI for good cause.
- Amended Rule 34 allows document requests to specify the form in which documents or ESI are to be produced. The responding party may object to the requested form, and if it does so, it must state the form it intends to use. If a request does not specify a form for producing the requested documents or ESI, the responding party must produce the requested materials in the form in which they are ordinarily maintained or in a form that is reasonably usable. A party does not need to produce the same documents or ESI in more than one form absent showing of good cause.
- Amended Rule 37 prohibits a court from imposing sanctions for failure to provide ESI lost as a result of routine, good-faith operation of an electronic information system absent exceptional circumstances.
- Amended Rule 45 would address requests for, and production of, ESI in the context of subpoenas.
For more information on the proposed amendments, visit the Judiciary’s website. To submit comments online, click here.