Your Opinions Are Not Your Employer's

(Published September 22, 2008)

 

Reprinted from PERSONNEL LEGAL ALERT, a widely read employment law newsletter that keeps HR executives up-to-date on the latest court cases, legal trends, government regulations, and federal legislation that affect the policies you write and procedures you administer.  Click here to get more information, or sign up for a risk-free subscription. 

 

In your capacity as a Human Resources professional, you must be careful of everything you say and write.  Opinions uttered or printed in personal correspondence can be misconstrued as official business if your title or the company's name is associated with them.  E-mails can be especially troublesome because a message that is sent to one person can be forwarded to a much larger audience in an instant.

In one particular case, a Human Resources employee at a public university sent an e-mail to a colleague that contained four documents she had obtained from the National Association for the Advancement of Colored People (NAACP), which purported to portray likely results of salary restructuring initiatives and reflected the NAACP's opposition to pending legislation that was supported by the university.  Of the four documents, only one contained a cover page stating that it was prepared by the local chapter of the NAACP.  The employee sent the e-mail from her university e-mail account and it contained a signature stamp identifying her as a university Human Resources employee. 

After receiving the e-mail, the colleague asked and received the employee's permission to forward the message to other university employees.  The recipients then forwarded it to others.  One sent it with this note: "You might want to pass this along, as it seems HR is circulating this."  The e-mail was also sent to a listserv of university staff members.

The employee's supervisors spoke to her about how her e-mail contained significant inaccuracies and had caused confusion and disruption in the workplace.  The employee refused to divulge where the information came from.  The university eventually fired her for distributing the e-mail and for refusing to provide assistance in identifying the source of the inaccurate information.  She sued, arguing that the university violated her free speech rights since the e-mail constituted protected speech.  An appeals court upheld a district court's dismissal of her case.

The employee's e-mail correspondence was not entitled to First Amendment protection because the university's interest in providing effective and efficient services to the public strongly outweighed the employee's interest in expression.  The employee violated a state policy limiting the sending of personal e-mail from state accounts and computers.  This policy bolstered the university's attempts to manage the dissemination of information from university accounts and computers, part of its broader attempt to provide "effective and efficient services to the public."  The employee's e-mail hindered that attempt because it identified her as an HR employee and generated confusion among its recipients.  (Bowers v. Scurry, 4th Cir., No. 07-1382, 2008)

 

Personnel Pause

Although the First Amendment does not apply to private sector employees, this case exemplifies why you must be extremely careful about sending personal correspondence via your work computer.  Personal e-mails should not include a signature stamp that identifies you as a representative of Human Resources and should include a statement that the expressions are your own and do not reflect that of your employer.  Of course, it's always best to send only work e-mails from your work account and use your personal account for personal messages.

Related Topic(s): Privacy Policy Guidelines/Electronic Communications