Requiring Employee’s Personal E-mail Addresses (United States)

This Wisdom of the Crowd (ACC member discussion) addresses whether or not a company may require employees without work e-mails to provide their personal e-mail address. This resource was compiled from questions and responses posted on the forum of the Employment & Labor and Small Law Department ACC Networks.*

*(Permission was received from the ACC members quoted below prior to publishing their forum Comments in this Wisdom of the Crowd resource.)

Question:

One of our VP's has proposed that we collect personal e-mail addresses from our employees who do not otherwise have a company e-mail address so that we can periodically keep them in the loop on things like company news and benefit changes. Many of these employees are in the field and might not necessarily have access to a company computer. Are other companies using personal e-mail as a way to keep in touch with employees? Aside from the issue of using personal time to read a company email, are there any other issues with collecting these?

Wisdom of the Crowd:

• Response #1: We use personal e-mail addresses for everyone (including employees who have work e-mail addresses) because we send paycheck stubs to our employees' personal e-mails (we have direct deposit). We happen to operate in states where we are not required to provide a physical paper stub, so a year or so ago we made providing a personal e-mail a requirement. We have now expanded that to use them to send company-wide notices. Many benefit communications can also be made by e-mail. We have a number of drivers as the majority of our workforce (who do not have a work e-mail), and they have an FLSA overtime exemption, so I haven't worried about the personal time to read work e-mail, although if it's just a notice here and there I would think it's de minimus. We haven't had any problems and other than confirming there isn't a state law regarding specific communications to be in non-electronic format, I don't know of any other issues.ⁱ

• Response #2: While some benefits communications can be made electronically, there are rules about how to provide various ERISA (Employment Retirement Income Security Act) and ACA (Affordable Care Act) required communications, and not everything can be provided to everyone this way.

• The DOL (Department of Labor) has a safe harbor rule that explains the requirements. In general, unless a person has work related e-mail access (and that electronic access must be an integral part of their duties), you must first provide a notice and obtain written consent, and follow certain procedures to verify receipt. Note that even if the employee has work related e-mail aces and meets that test, his or her spouse and dependent would not fall under that exemption, so you would have to obtain consent. Not also that central kiosks or computer stations do not meet the test that a person has e-mail access at work – the person has to have regular e-mail access as an integral part of his or her work duties.ⁱⁱ

• Response #3: There is another issue to keep in mind if you collect personal e-mail addresses of your employees. In the event your workplace is being organized by a union, under the new "quickie" or "ambush" election rules promulgated by the NLRB - which went into effect on April 14 - you will have to turn over those e-mail addresses (as well as other personal contact information) to the union. The union can then use the personal e-mail addresses to communicate its organizing messages to the employees.ⁱⁱⁱ

• Response #4: I guess I'm confused about why you wouldn't just create a company e-mail address for them, and then either give them access to your e-mail server so they can get e-mails while remote or let them give forwarding information to the IT department.^iv

• Response #5: If you have any employees outside the US, you may have a very serious privacy problem in demanding that employees provide their personal e-mail address, so be careful about that. If you are only within the US, and if we're talking about non-union employees, you certainly can ask, but you need to be prepared for what you are going to say to an employee who refuses. You may also have some issues relying on messages sent to a private e-mail address being sufficient if you have a legal obligation to provide some information, notice or document to the employees, meaning that you may still need to send a hard copy.^v

• Response #6: I'm trying to come up with a reason why an employee's personal e-mail address poses any different concerns than an employee's personal phone number or snail mail address. So far nothing comes to mind (unless you were to propose using those e-mails for conduct of regular company business, or would use them for transmission of company valuable secrets or such, which does open up information security concerns, but the question does not suggest that). Not to suggest that there are no concerns with knowing an employee's home phone number - There clearly are obligations to use it wisely and keep it to yourself. I just figure I'd view the home e-mail in the same fashion. (Obviously it goes without saying that local law may entirely undermine my gut reactions. I'd be particularly concerned if the employees are in non-USA jurisdictions, and suggest you hire local counsel in that case.)^vi

• Response #7: We collect and maintain personal e-mail and phone numbers as emergency contact numbers. So, in case of an emergency, if our servers are down, we can contact the employees. In general, there are no issues in collecting them, only how you use them.

• They should not be shared/sold outside of the company and only used for work purposes. I am involved in a not-for-profit, and it is interesting how willingly bosses are in using their employee's e-mails for good intentioned fund raising!

• Also, I would minimize their use. You don't want to get to the point that an employee/court views maintaining a personal e-mail as a work requirement subject to reimbursement.

• It would be good to develop a policy and update your employee handbook.^vii

• Response #8: My only thought would be to handle those personal e-mail addresses in the same manner in which you would handle PII (personally identifiable information). The database and/or spreadsheets where the master record is stored should be properly secured, limited access, logged, and audited for correct usage. This might be a pragmatic issue if everyone needs access to them for consistent company business.^viii

• Response #9: One concern might be whether non-exempt (hourly) employees are required to read these e-mail communications and whether they need to be credited for this time and paid for it.^ix

• Response #10: Another thing to keep in mind, particularly if your company is a potential target of union organizing, is that, under the NLRB's new regulation changing representation-case procedures that took effect on April 14 (often called the "Ambush Election Rule" or "Quickie Election Rule"), employers that collect the personal cell phone and email addresses of NLRA-covered employees must disclose those numbers and addresses to a union in an organizing drive.^x

• Response #11: An additional item to consider is that, in the event of a claim or litigation related matter, those personal e-mail accounts (and potentially the personal devices through which those e-mails are accessed) could come within the scope of a litigation hold and/or discovery. And, in such event, additional internal issues may arise if such a situation is not covered at your company by a BYOD (Bring Your Own Device) or similar policy applicable to employees.^xi