Employee web sites and internet postings: Is it your business?

17 Sep Employee web sites and internet postings: Is it your business?

Jury finds in favor of restaurant employees disciplined for content on social networking site

Long gone are the days when the beauty shop and golf course were the only locations employees could complain about their employers. Now, employees have numerous outlets for venting their frustrations, airing their (or your) dirty laundry or just plain making stuff up. MySpace, Facebook, Twitter, personal Web sites and blogs all provide an outlet for the disgruntled or bored worker. So what if the employee posts something unflattering or untrue about your company? Can you do anything about it? Your available options for responding are often governed by the answers to the following questions:

• What did the employee post?
• Where did the employee post?
• And how did you access this information?

Hillstone Restaurant Group, owner of a popular restaurant chain, recently learned the hard way that accessing restricted Web sites to view employee postings without proper authority violates the federal Stored Communications Act, as well as state wiretapping and surveillance laws.
Employee Creates Private Group on MySpace
Hillstone employee Brian Pietrylo created a private group on the social networking site MySpace called “The Spec-tator.” The group’s stated purpose was to “vent about any BS we deal with out [sic] work without any outside eyes spying in on us.” The Web site stated that the group was “entirely private and [could] only be joined by invitation.” Many Hillstone employees took advantage of the site, posting comments alluding to violence and illegal drug use, stories about the restaurant’s food quality and customer service, and sexual remarks about management and customers.
While dining at her manager’s house, Hillstone employee and Spec-Tator member Karen St. Jean showed the Web site to her manager. Sometime later, another manager asked St. Jean for her password to the site, which she provided. Management then accessed the site using St. Jean’s password and terminated Pietrylo and another employee based on what they found. The discharged employees filed suit against Hillstone, claiming invasion of privacy and violations of various communications laws.
Jury Rules in Favor of Discharged Employees
Importantly, in summary judgment proceedings, the New Jersey federal court found that St. Jean had not freely given her password to her manager because she testified at her deposition that she thought she “would have gotten in some sort of trouble” had she refused. The remaining issues went to the jury and, on June 18, 2009, the jury found that the restaurant chain had violated the Stored Communications Act and the New Jersey Wire Tapping and Electronic Surveillance Act by intentionally accessing the MySpace group without proper authorization. The jury did find in favor of the employer on the employees’ claims for invasion of privacy, finding that the plaintiffs had no reasonable expectation of privacy in the Internet group.
Lessons Learned
The verdict against Hillstone is a reminder that employers should tread carefully when accessing employees’ Internet postings, especially when the contents are designated as private or restricted access. When faced with the possibility of viewing an employee’s Internet postings, employers should ask themselves whether viewing the content is necessary and what they would do with the information once obtained. If management decides there is a need to view the posting, and it is possible to obtain permission from an employee to view the materials, it is important to document that permission with specific emphasis that the permission is given voluntarily and may be refused or revoked at any time without retaliation.
Finally, employers should consult with legal counsel to review the intended course of action, including whether the Web site content justifies discipline in light of state specific laws such as Wisconsin’s statute prohibiting employment decisions based on an employee’s use of “lawful products” outside the workplace.