Without getting too technical, computer “screen savers” are graphics or text images that are programmed to appear on a computer monitor during periods of inaction. Although the true purpose behind screen savers is to reduce the unnecessary wear and tear on the computer monitor while an employee leaves his/her desk or speaks on the telephone, screen savers have evolved from a practical tool to a forum for employee personal expression in the American workplace. Some employees personalize their screen savers to relay messages to passersby such as “Out to lunch - Back at 1:00 p.m.” while others download pictures of pets, loved ones, the American flag, etc. to decorate their workspace. What appears to be harmless, however, sometimes leads to litigation.
On December 20, 2001, in the case of St. Joseph’s Hospital, 337 NLRB No. 12 (2001) the National Labor Relations Board (“Labor Board”) was presented with an “issue of first impression” and held that an employer violated the National Labor Relations Act (“Act”) by prohibiting an employee from displaying a union-related screen saver message on her computer. Specifically, during the nascent stages of a union organizing drive by the United Food and Commercial Workers Union to organize the hospital’s nurses, nurse Patricia Elalem programmed a screen saver “Look for the U” on the computer in her workstation. Her supervisor issued a written warning to her for displaying “union-related” content and further advised that “bulletin boards and screen savers are hospital property and it is inappropriate to post pro union messages on hospital property....”
As a result, the Labor Board found two violations of the Act. First, the Labor Board found that the hospital discriminatorily prohibited the employee from displaying a union-related screen saver. The evidence established that the hospital routinely permitted the nurses to display a wide variety of personal, non-work screen saver messages. These messages included “Go Buccaneers,” “Go FSU,” “Be Positive,” and “Have a Nice Day.” Second, the Labor Board held that the hospital discriminated against the employee by issuing a written warning to her for exercising her protected right to engage in union activity.
The Labor Board’s holdings in St. Joseph’s Hospital may foreshadow a greater change in the American workplace than ensuring compliance with the Act. The absence of a policy restricting the contents of screen savers or a company’s failure to enforce an otherwise valid screen saver policy may lead to litigation – and the potential for litigation is immeasurable. What if an employee displays a picture of his wife in a revealing swimsuit on his screen? Will that lead to claims of a sexually hostile work environment? What if another employee displays a religious message? Can there be a race discrimination claim against your company for permitting the screen saver chosen by a Caucasian, but prohibiting the screen saver used by an African-American? The real question is whether your company is prepared to respond to screen saver issues.
Therefore, employers should consider whether they have an existing policy prohibiting employees using personal screen savers or restricting their content, or if the company permits its employees to post whatever graphics and text they desire on the company’s computers. These questions address the fundamental issue of whether a company is vulnerable to attack by a disgruntled employee who claims to have a right to use a personalized screen saver.
But having a valid policy does not mean that your company is shielded from potential liability. Implementation of a screen saver policy is one thing – nondiscriminatory enforcement is another. If your company does have a policy, check to see if it is enforced, and if so, if it is done so in a non-discriminatory manner. As in St. Joseph’s Hospital, the employer permitted employees to use personal screen savers and violated the law by attempting to restrict the content of another employee’s screen saver.
Generally, employment policies should be drafted to cover all possible situations and be further tailored to meet a company’s specific concerns. The simplest form of a screen saver policy, however, is to completely prohibit the use of customized screen savers. Therefore, the employer can implement and enforce a zero tolerance policy. Although certain employees may feel that the policy is harsh and restricts their ability to “decorate” their workstations, it removes the possible arguments (and litigation) over discriminatory enforcement. If an employer wants to be viewed as a “more friendly employer of choice,” it can implement a less restrictive policy that specifically sets forth the types of permissible screen savers. However, be advised that permitting certain screen savers and not others has the potential to open the door for a myriad of discrimination claims.
As the workplace evolves and becomes more computer dependent, it is important for companies to be proactive by implementing and enforcing policies addressing the use of company technology. In this regard, over the past five years, it has become in vogue for companies to implement E-mail and Internet policies. This was spurred on, at least in part, by the litigation that ensued over the terminations of employees who used company Internet and E-mail systems for personal, non-business use. The Labor Board has also addressed an employee’s right to use the company E-mail system for union organizing when the company does not expressly restrict employee use of the system. As with E-mail and the Internet, the next wave of litigation may be the use of screen savers. Now is the time to address drafting a screen saver policy with counsel.