Emails sent at work are property of company, users have no expectation of privacy: Lawyer
A recent situation in British Columbia where an employer blocked inbound email from the union representing its workers highlights an issue more unionized workplaces may see in the future, according to Jitesh Mistry, a labour lawyer with Black Gropper in Vancouver who represented Canadian Office and Professional Employees (COPE) Local 378.
In July, the Insurance Corporation of B.C. blocked all email communication from the union after COPE announced a new job action — asking members to change their company email signature.
Employees across the province sent out more than 20,000 emails with messages such as, “We work, you drive; we both deserve better” replacing the official company signature of “Building trust. Driving confidence.”
Last month, the B.C. Supreme Court granted an injunction barring the job action and emails are once again flowing.
But the issue of whether an employer can block union emails has not gone away, Mistry says.
“This is actually a place where labour law hasn’t caught up with the modern workplace,” he says.
In the past, Mistry notes, unions accessed members in other ways, such as regular mail or by posting union communication on bulletin boards in the workplace. But times have changed and labour law needs to change with them, he says.
“This is not like a mill where we can have everyone come to the union hall down the street,” he says. “There are 4,600 employees scattered around the province.”
Blocking email restricts the ability of unions to do their jobs — something that contravenes the right to freedom of association, says Mistry.
By blocking email from a union, he adds, an employer is setting limits on personal use which could be unfair if those bosses don’t similarly crack down on workers who use company email for other personal reasons, such as banking or responding to a party invitation.
He questions why email from a union should be considered differently and advises unions not to cede this form of expression to employers.
“It’s not a complete answer to say the employer owns the (email) system,” he says. “It’s important to understand not only how work is done now, but how it will be done in future and bear that in mind during collective bargaining.”
But some employment lawyers argue ownership does allow employers to pick and choose what kind of information is sent to workers.
Geoffrey Litherland, managing partner at Harris & Company in Vancouver and counsel to ICBC, says in this case the union was asking its members to alter their work email signature templates, which had the effect of converting ICBC’s interest in the correspondence.
“It interfered with ICBC’s proprietary interests in its email system and restricted ICBC’s ability to communicate with the public in the course of its business,” he says, adding the insurer had a right to restrict the union’s access to its email system for this purpose as part of its “duty to mitigate potential loss arising from the union’s unlawful behaviour.”
In this case the union was not seeking to put out a message only to its members, he says.
“If you have a claim then and have an adjuster sending you this message, does that mean that you have to show some sympathy toward the adjuster to advance your claim to your satisfaction?” he asks. “It becomes troubling because the claimant just wants his claim properly handled and may not be sure what to make of the union messaging that is attached.”
Litherland says when employers allow unions access to members through company email systems, it creates an opportunity for disagreement and an opportunity for a union to make broader use than what was initially intended.
Jodi Gallagher Healy, an employment lawyer with Heenan Blaikie in Toronto, says arbitrators have recognized email is the property of the employer since it is the business that incurs the cost and maintenance associated with the system.
Arbitrators have also recognized there are other ways for unions to communicate with their members, including union web pages, meetings, and personal email accounts, she says.
Allowing unions to access company email can raise issues around use of company time, duty of fidelity, insubordination and discipline related to the spreading of recklessly false information, Gallagher Healy says.
Unless unions can prove they have no other way to reach their members, or they have a long history of using company email and the employer suddenly changes its policy, the balance of interest in these cases tends to favour employers, she says — but they should tread carefully.
“Employers need a policy that sets out this is the employer’s system, it has a right to review information and there’s no expectation of privacy,” Gallagher Healy says.