As soon as employers started equipping employees with email accounts and a list of company email addresses, things started getting complicated.
Before the advent of email, it took some real effort for employees to communicate with other employees about things like working conditions and discrimination claims. But these days, it only takes a few seconds to send an accusatory email to everyone in the company or even to customers and clients.
When employers began viewing such mass emails as insubordination, employees and their champions were on the attack. They charged that sharing working conditions with other employees was “concerted action” permissible under the National Labor Relations Act (NLRA) and protected activity under Title VII and other federal laws.
Are employers handcuffed? No.
You can punish employees for many email attack campaigns—as long as you first make sure the content doesn’t qualify as concerted or protected activity.
Recent case: Windy Harris-Rogers worked for Ferguson Enterprises, a plumbing wholesale business. Harris-Rogers, who is black, was the company’s showroom customer coordinator. She greeted customers, scheduled appointments, answered the phone, helped prepare design portfolios and reminded customers about upcoming appointments. She had no authority to set prices or review sales orders prepared by the sales staff.
Nonetheless, Harris-Rogers sent a customer an email that was highly critical of a salesperson and the company’s price policies. The email said, “sometimes they really mark things up around here especially if they think you can afford to pay.”
Shortly after that email, Harris-Rogers commiserated with another black employee who claimed that she had to find her own replacement when she wanted a day off. By mistake, Harris-Rogers sent an email intended for the co-worker to everybody within the region who was on the email distribution list. Her email urged the co-worker to complain to HR in order to pressure their boss about scheduling issues.
It did not mention race or any other form of discrimination.
When Harris-Rogers was fired for insubordination, she sued, alleging that at least one of the emails was protected activity.
The court disagreed. It said neither email included any allegations about discrimination and therefore weren’t protected activity. It upheld the discharge. (Harris-Rogers v. Ferguson Enterprises, 5:09-CV-78, ED NC, 2011)