Darcy's E-mail had first been shut down in 1999 when he ignored repeated warnings from the department not to communicate via departmental E-mail with his fellow union members concerning contract negotiations and pending legislation that could result in layoffs of union members.
Darcy won an appeal before the New York State Public Employment Relations Board, which determined in 2000 that Darcy was engaged in protected activity when he communicated via education department E-mail with other union members regarding terms and conditions of employment. The judge ordered the department to restore Darcy's E-mail access.
But a New York state appeals court last week upheld the department's right to suspend Darcy's E-mail privileges.
"If it wasn't for the labor-law issue, this is an open-and-shut case," says Stewart Baker, a partner with Steptoe & Johnson LLP and head of the law firm's technology practice. The employer gets to set the rules for using E-mail, he says, because it's providing the service for its employees.