Court to decide limits on employee Web privacy
May 1, 2009 by Jim GiulianoPosted in: Complaint investigation, Discipline, Employment law, Free speech, Special Report, Terminations
Suppose an angry employee uses a social-networking Web site to trash your company, your managers and even your customers. Can you legally take action against the employee? The results of a landmark federal-court case will provide the answer.
Combine the specter of layoffs, pay freezes and benefit cuts with the popularity of sites like MySpace and Facebook, and you have what’s become a not-uncommon situation: Employees — from home and on their own time — criticizing their employers for all the Internet world to see.
Could they be fired?
In the court case in New Jersey, two restaurant employees created and contributed to a forum about their workplace on MySpace.com. They e-mailed invitations to co-workers, who then had to log in using a personal e-mail address and a password.
The two employees criticized the restaurant’s decor, ridiculed its customers — including sex-laced jokes — and made harsh comments about their supervisors.
The employees charge that their managers illegally accessed their online communications in violation of federal wiretapping statutes and that the managers also violated their privacy under New Jersey law.
So, here’s what the court will decide:
- Are off-work Internet postings about employers grounds for discipline by the employers?
- Do password-only postings have special privacy protections that preclude any type of discipline by employers?
- Can employers establish policies about employee expression and attitude that extend to Web postings?
We’ll keep you posted on the outcome.
Note: Some states protect employees who engage in lawful, off-duty activities from being fired or disciplined. While private conversations might be covered under those laws, none of the statutes specifically addresses social networking or blogging.
May 4th, 2009 at 10:03 am
It will be interesting to see how this plays out. I can’t help thinking about 1984 and Big Brother myself. Want to hear what others think.
May 4th, 2009 at 10:30 am
I guess I would say it is clear they don’t want to work there so they should be terminated. If not for the company it self, but for their customers. This is a new level for customers to avoid coming to your business, fear of being ridiculed themselves.
May 4th, 2009 at 10:52 am
Long before these social networking sites I’ve always thought it was a good idea to never put anything in writing you wouldn’t want your boss (or perspective boss) to read… and I’m the boss! You would be surprised how often I find on our own Outlook system someone telling a friend they are going to call in sick tomorrow… or why they called in sick when they weren’t. Think it through people!
May 4th, 2009 at 11:30 am
I would say that since the site was password protected then there is a reasonable expectation of privacy. The employer is outside the bounds of what employers are permitted to do.
May 4th, 2009 at 11:46 am
NJ:
it’s PROSPECTIVE adjective 1. of or in the future: prospective earnings.
2. potential, likely, or expected: a prospective partner
not PERSPECTIVE noun 1. a way of regarding situations or topics etc.; “consider what follows from the positivist view” [syn: position] 2. the appearance of things relative to one another as determined by their distance from the viewer
May 4th, 2009 at 12:08 pm
Wow, there are so many ways of looking at this issue; you could get a headache from thinking about it. My first thought is to agree with Judy, many 1984-ish implications there. I have no idea what would be creepier, being the employee under the watchful eye or being the watchful eye. Even those who watch must then be overseen thus a situation rife with opportunities for human emotion and corruption.
The devious side of me is thinking …”hmmm, this applicant used to work at Such & Such Co. and left about 3 months ago, I wonder if ever blogged about their experiences there?” I can search their Networking site posts as easy as anyone else. This could work to the applicant disadvantage because I would seriously do some hard thinking about applicants who blatantly trashed their former employer so publicly. I would question maturity and personality … do rational adults behave this way? Do we need a vindictive and bitter person on our staff?
The darkest part of me that is easily annoyed is thinking … “Who are these people with so much time on their hands to blog and search for blogs and who really pays attention to that crap?” Have we really reached the point where we give credence to disgruntled employees or ex-employees? I expect terminated employees to be upset and trash their former employer, its part of the human coping mechanism. I also have a reasonable expectation that not every current employee feels that their job is fabulous and that their management has their best interest at heart. I know that people are far more likely to spread negative news than they are to yap on about a good day at work. Think about it; the checkout out clerk at the home improvement store tells you about a better deal on lumber and you save over a $100 bucks for your project … you’ll probably tell your spouse and maybe the friend helping you frame in your new garage. Now, if you eat at a restaurant and the service is poor or the food is unsatisfactory, you will mention it to at least 10 times the day it occurs. Then every time the topic of restaurant service or quality comes up in conversations; you will pull this negative story out like a weapon and verbally beat this restaurant to a bloody pulp.
Logic dictates that we will always find 10 bad things for every singular positive thing written about anything on the internet. I feel we’d all be better off investigating urban legends and what happened to Jimmy Hoffa than searching for integrity or insight in employee online postings. Networking sites online are like The National Enquirer, you stand at the checkout line and read the headlines, giggle at the photos and pay absolutely no attention at all to any information within because you know it’s crap to begin with. Purposely spending money to investigate crap when you know its crap to begin with brings to mind the timeless saying, “you get what you pay for.”
Oh, crap!
May 4th, 2009 at 1:11 pm
An employer should have an open forum for talking about things the employees do not like about the establishment. If they get it off their chest in the open, there is no reason for an employee to have to blast it on the internet. This is really just a lesson in employee relations. Get your head out if you are the employer who is offended by someone ridiculing your decorating tastes. Someone is obviously trying to tell you something… your deco sucks and you are so full of yourself that no one can approach you on it. As far as saying bad things about customers, I think that is another subject entirely. Have some class and pride in your job, employees. Can they be fired on grounds of immaturity? Maybe sign something at hire that this behavior is grounds for termination.
May 4th, 2009 at 1:13 pm
I hated the restaurant I used to work for. It looked like an early 90’s cruise ship.. Its in Napa. Anyone know the restaurant. haha.
May 4th, 2009 at 1:27 pm
Quite an idea, isn’t it? It’s one of those “catch 22″ moments. I like what NJ says – and what GWolf says. And what CSS says….well, it rings true too.
So my 2 cents….if I’m going to hire someone for a strategic position in my department (or my company), I’m going to research everything I can. I’ve made hiring mistakes before and you (and your company) pay dearly for it. I have long said “I can always train someone but I can’t make them have a good attitude.”
In an interview process, we often ask “Tell me about a time at work that was difficult or that you didn’t agree with your supervisor and what you did.” You can guarantee that the interviewee will be fluffing up the answer to score points. Have you ever heard someone answer that question with “I didn’t get along with my boss at all or my co-workers were/are idiots.” RED FLAG! At least it is for me. But….these people may be inclined to make a similar comment (or multiple comments) about their employer or co-worker online…and why on earth do I want to put my company or co-workers at risk for similar comments or scrutiny.
I don’t know about you all, but we spend a small fortune building our company name/brand into something that’s positive and focused.
My company pays well and has great benefits….we research the applicants background (criminal, credit or otherwise) and whether or not the application has discrepancies or falsehoods. While I know blogs are “opinions”, it still tells me alot about the person.
Easiest example I know….let’s say you are a research industry and do limited, legal animal testing. Your company is a prime employer in the area. Do you want to hire someone who is an active member of PETA? Is it discriminatory to consider that? I don’t know – but if I have two candidates of equal qualifications, I’m not choosing the person who pushes animal rights unless there is a serious compelling reason to do so.
I give credit to disgruntled employees and I also believe they have every right to “vent” – but it doesn’t mean its someone I want to hire. Eventually their next blog will be about you (your company).
May 4th, 2009 at 1:54 pm
1. If this is a password protected site–I would venture to guess that the customers would not see these postings either. So while disturbing that someone would do that, the exposure is not like it is on the full access sites.
2. What if they are blogging about their union organizing efforts? Would you not hire thembecause of that? Or that they belonged so some group that may not be the most positive reflection? It is legal, it is protected–and it is on their own time. MAking a hiring decision based on that info is dangerous territory.
We all have complained at some point about our workplace. The decor thing–that is most likely whining and they ahd nothing better to pick on so they did that. Wouldn’t be bothered by that. But, we all ahve gone out for after work and complained about boss/co-workers/customers at some point. The difference is here is that more people have the potential to see/read it—vs. whining at a bar with your best bud, and only 2-3 people hear it.
While disturbing and I would want to do someting about it–firing them is not the asnwer. The person who posted that if you have a way for people to voice their concerns in house and you deal with them, there is less need for people to vent outside. It will happen–for sure. But, you can limit the times that it does.
May 4th, 2009 at 2:02 pm
This recently presented itself at my hospital when a nurse was posting daily comments about her work load, surgical cases, physicians, etc. We had no choice but to talk to the employee (no discipline yet) and ask her to not to post about the hospital. When you consider that anyone can deduce who the patients are by this employee’s detailed description of, in some cases, what went wrong during surgery, then it poses HIPAA concerns for the hospital. Bottom line, I definitely think it’s ok for employers, especially healthcare, to take action against employees for negative posts.
May 4th, 2009 at 2:08 pm
This may not be grounds for termination on the first instance. However, the employer does have the right to counsel the employees on inappropriate remarks about their supervisors and the customers of the establishment. If the behavior continues, then I think the employer has the right to terminate the employees. If the employees don’t like their place of work, there is nothing preventing them from seeking employment elsewhere. I think every organization has a few employees who are either disgruntled or bitter about where they stand with the organization and life in general. While most of these employees are harmless, anyone “trashing” the business can cause harm not only to the health of the business, but also their working relationship(s) with their supervisors. A password protected site isn’t going to prevent someone from screen printing or sharing the comments in other mediums.
So a clear the air session is warranted first. Progressive discipline should follow in order to protect the organization from wrongful termination issues.
May 4th, 2009 at 2:40 pm
I hope the courts treat this much the same as they would a non-compete. That is, if the company can prove that it has sustained financial or customer loss – or is likely to sustain loss – because of the disparaging remarks or actions, the company has every right to take any appropriate action to stop the behavior. That protects both the ability of the employees to express dissenting views and the company’s need to conduct regular business and be profitable.
We all have a right to disagree with the company we work for, but we do not have the right to cause them to lose business because we disagree. Because in addition to that right to disagree – we also have a responsibility (to ourselves and the comopany) to leave and find another employer with values more in-line with ours if we disagree that severly.
The unfortunate part is that we’ll all encounter employees and co-workers for whom nothing will ever be enough. As employers, we’ll keep passing them along to one another, and they’ll keep bouncing from job to job because nothing will ever meet their lofty expectations. It’s too bad, but it’s just something we have to deal with and prepare for as much as we possibly can.
May 4th, 2009 at 2:48 pm
I am an employer. Since one of the most important aspects of a business is its reputation, it is important that business owners are able to protect it from defamation. If anything defamatory is out in the public arena, there should be two paths an owner could pursue: 1) Legal action for Slander, and 2) Employment Termination.
Most employers do web research on possible candidates. Character is the #1 attribute I personally look for before hiring someone. It is advisable that people who need to work for a living, refrain from going online and posting negative comments about anyone, period.
May 4th, 2009 at 3:04 pm
To Mar,
Don’t be a jerk. Everyone who read NJ’s post knew what he/she meant and knew it was just a typo. People like you drive me crazy.
May 4th, 2009 at 3:24 pm
This was a password protected website. I liken this to a few co-workers going to a bar or ballgame and “venting” about the job or their boss. There is a positive side, because these aren’t the individuals you find in the news after they have come to their workplace armed and distraught.
However, sometimes someone overhears a conversation and calls the boss. It might be a passerby, it might be an employee wanting to score points. In this case, someone might provide the boss the password to access the site. The boss needs to address what was heard or read and the context.
I agree that for legal action to take place, the company has to suffer damage and the information has to be untrue. As an employer in an “at will” state, having an employee who’s behavior is detrimental to the morale and productivity of the workforce is enough to take disciplinary action up to and including termination. I see such situations as opportunities, though. If there is a problem for my employees, I want to see what can be done to fix it. Usually it just takes a little communication and some realistic expectations.
Finally, with our newest “techno” generation entering the workforce, they spend more time texting, blogging, and twittering than sitting around drinking beer, discussing work, and playing pool. They aren’t going to stop just because an employer doesn’t like it. They generally will respect and respond positively to a company/or boss that works constructively to resolve problems. They need to learn what I learned many years ago…what is said in anger (or frustration) cannot be taken back. It doesn’t matter if it is said face to face, on the phone, over a radio, in a letter, in a blog, in a text message, etc.
May 4th, 2009 at 3:31 pm
I agree with Rose. We are an in employment-at-will state and if one of our employees was to do something like this, they would be gone in a heartbeat.
May 4th, 2009 at 4:35 pm
For those of you who say ‘fire ‘em’–how would you see it if this were directed at you–after you vented to a spouse, a friend at a bar and it got back to the boss?
Not saying that what they did was right or wise, but unless there is something that you can demonstrate that the business was harmed (you lost thecustomer they talked about), this is a futile effort–everyone is unhappy with their job at some point. Most people tell others to vent to get it off their chest. ARe u going to fire eveyrone who has a bad day?
There has to be a better way to deal with this.
May 4th, 2009 at 4:57 pm
HRinIA,
You nailed that part directly. An employee who trashes their former employers will one day find some reason to start trashing their current one. There are many who just like to gripe, period. There are so many levels to this issue from freedom of speech to privacy issues between companies, employees, clients and even vendors. What if, like hc101 mentioned, the blogger gave just enough information to violate the privacy of a client or vendor?
I would personally never pay attention to employee rantings about their employer simply because most of it is just pap, venting of emotions, etc. As a vendor, I may take disparaging remarks about our service by the employee of those we service a little more seriously. There could be slander or defamation issues and contract violations if one is in place.
The darker side of me still feels that if you have all that time to blog nastily, you certainly have time to fill out a resume and find yourself another job if you hate the one you are in so passionately. Good jobs are at a premium, the smart employee would not chance screwing that up by attempting a little internet whining. On that same note, companies who go out searching for negative remarks from employees or clients should be aware that odds are, they will find more than they hoped for.
To really bring the message home, the non-comp agreement would have to be more specific and this will certainly make another fine argument for companies to carry some form of Employment Practice Insurance. Obviously, the phrase “fire at will” has a whole different meaning for some of us.
May 5th, 2009 at 9:15 am
MarieS,
This isn’t the same as venting to a spouse. Like you, I don’t agree with firing someone for bad- mouthing the company. As an employer, you need to engage this person or group of people to sort out the issue(s) if possible so that everyone can move forward. However, if the behavior persists, then stronger action is needed up to and including termination.
To create a site to post derogatory comments is akin to emailing or blogging about an employer, a company or a person. The person or people doing it should be made aware that if the target of the site files a complaint about harassment, the employer is obligated to act on it. Their site will become fair game in a court of law just like emails. So in my view, by doing this, the creator of the site is not only exposing the company to litigation, but also themselves.
If a person doesn’t have something good to say, you cna still voice your opinion but don’t put it in writing or in cyberspace.
May 5th, 2009 at 12:29 pm
The employer can likely only win if it’s based on defamation/slander — primarily, flat out lies.
The employer can do nothing if they merely opinions, like:
. my boss is a dumb a**
. I hate that restaurant
. The customers suck
^ in this case the employer can fire them… BUT if it was said off hours and in a private setting, as theirs was in a “you must LOGIN to read this” environment (meaning, NOT PUBLIC), then the employer is going to have a HARD time not suffering wrongful termination.
That would be like me suing my boss because I overheard him at a football game saying I am annoying, claiming he harasses me or demeans me… but it didn’t happen AT work. I’d have to prove his harassment or unequal treatment at work. Outside of work, it’s personal.
And the employer is really screwed if they spoke truth, such as:
. my boss told me to use the expired mayonnaise anyways
. my boss ignores the cockroaches.
^ in these cases the employees have a basis to pursue a reverse suit, termination for the employer’s misconduct.
May 5th, 2009 at 1:08 pm
To John:
“And the employer is really screwed if they spoke truth, such as:
. my boss told me to use the expired mayonnaise anyways
. my boss ignores the cockroaches.
^ in these cases the employees have a basis to pursue a reverse suit, termination for the employer’s misconduct.”
You bring up a very important point here. It is imperative that employers COMMUNICATE with employees who bring up concerns regarding safety or misconduct. It is good to do this both verbally and in writing.
For example, the worker in a food pantry has concerns about donated products past their “best if used by” date and reports it to a supervisor. It is important to ‘thank” the employee for the report and to communicate that the “best if used by date” is not the same as the “end of shelf life date.” If the supervisor is going to investigate the concern, they should communicate this to the employee and follow up when the investigation is complete.
For example, an employee in a restaurant operation finds a dead cockroach at work and reports it to their supervisor. It is important that the supervisor “thank” the worker for the report AND communicate what steps have and will be done for pest control.
If the employer fails to do this, the employee can get the impression that the “employer doesn’t care” or “ignores” problems and complain outside the agency to get help. If the employer does communicate to the employee and the employee still characterizes the employer as “not caring” or “ignoring the problem” the credibility of this employee will be shot and they could be held responsible for their actions if it harms the company.
May 5th, 2009 at 1:53 pm
John and Mike,
You both make very good points. So what happens if someone who posted to the secure site at one time has a falling out with the other members of the group? People are people and when it gets personal, folks will pull out all stops to strike back. It is when this information becomes more widely discussed that you can potentially get into a hostile work environment situation forcing the employer to act in a tangible manner. (I think) What are your thoughts to this scenario?
May 5th, 2009 at 3:13 pm
To Carl:
Yup. People make our job messy. I personally think that anytime there’s a symptom of a problem, its best to investigate and deal with it right away. I don’t mean firing people left and right, but identifying what their concerns are and communicating what is being done. When co-workers have problems with each other, I will sit them down and mediate, but emphasize that the expectation is that they be try to work things out between each other first.
Hostile work environment where management is held liable is usually where management create it or condones it. If this is a social site with no links with the company, then the company is responsible for ensuring that the employees follow the expected behavior towards co-workers established in company policies. If this is a company sponsored website, then the company needs to ensure that the rules for the site are enforced, AND that employees treat each other in accordance with policies.
My experience is that most people start gossip, grumbling, and complaining to others when they feel that they are powerless and are hoping someone will hear them and SAVE them from the situation. I encourage everyone to address their issues with the people they have issues with first and to be considerate and respectful when they do. I encourage them to articulate what they like or respect about the other person first, and then state what they have concerns with and what it means to them. I ask them to articulate what they would like to happen. I have the other person repeat back what they heard to ensure clarity and then let the other side take a turn at the process. In time, employees have adopted this process to talk to one another and don’t have to involve me excpet in cases where emotions are high and there is a lot of distrust.