Off duty conduct statutes and privacy laws
“The first part of this article addressed issues surrounding the effect of the internet on hiring and firing in the 21st Century.This article discusses the laws that impact social networking in the workplace and provides guidance on developing a social networking and blogging policy.
OFF-DUTY CONDUCT STATUTES AND PRIVACY LAWS
Many states have enacted off-duty conduct statutes, which prohibit an employer from disciplining an employee for engaging in lawful conduct while away from the employer's premises. These states include, most notably, California, Colorado and New York. However, these statutes also provide exceptions that allow employers to limit otherwise lawful, off-duty conduct where it creates a material conflict of interest for the employer or is reasonably related to the employee's job. For example, the New York statute allows an employer to discharge an employee for off-duty conduct that creates a material conflict of interest related to trade secrets, proprietary information, or some other business interest.
In addition, courts interpreting these statutes have granted employers broad discretion in disciplining employees where the employer can show that the off-duty conduct has damaged the business, hurt the employer's interests, or is otherwise inconsistent with the employer's business needs. It should also be noted that a handful of jurisdictions, namely, Connecticut, the District of Columbia, Louisiana, New York, South Carolina, and Washington, protect employees from being discharged or otherwise disciplined for engaging in political activity or speech.
An employee who is discharged based on online conduct may also have a colorable invasion of privacy claim. To prevail on such a claim, the employee must prove that the information obtained by his or her employer was, in fact, private. Where information posted on a social networking site or blog can be viewed by the world at large, it will not be considered private. However, many of these sites allow users to grant access to their page by invitation only. Thus, access is restricted to a small group of individuals and may be considered "private" for purposes of a common law privacy claim.
A CASE IN POINT
Take, for instance, the case of Pietrylo v. Hillstone Restaurant Group, which was filed in the federal court for the District of New Jersey. In that case, a Houston's restaurant employee formed a private, by-invitation-only discussion group called "Spec-Tator" on his MySpace page. Spec-Tator was intended to be a place where Houston's employees could vent about their jobs. One member of Spec-Tator later provided uninvited members of Houston's management with her access information, and they viewed the discussion group page. Two employees, the creator of the group and another employee, were fired by Houston's as a result of information posted on Spec-Tator. The two employees soon filed a lawsuit, alleging, among other things, a common law invasion of privacy claim.
In June 2009, a jury found for the company on the privacy claim, deciding that while Spec-Tator was a private, secluded place, the plaintiffs did not have a reasonable expectation of privacy in the group. However, it should be noted that this claim did survive summary judgment, with the district court specifically reserving both the issue of whether the group was a private place and the issue of whether the plaintiffs had a reasonable expectation of privacy in Spec-Tator for the jury.
The Pietrylo plaintiffs did not walk away empty-handed, however. The jury found in their favor on their federal claim under the Stored Communications Act, 18 U.S.C. §§ 2701-11, as well as the state-law version of the Act, N.J.S.A. 2A: 156A-27. These acts make it an offense to access stored communications intentionally without authorization or in excess of authorization. Both statutes provide an exception to liability "with respect to conduct authorized ... by a user of that service with respect to a communication intended for that user." Thus, the plaintiffs' claims hinged on whether the employee who provided her Spec-Tator access information did so voluntarily or instead felt pressured or coerced into providing such information. The jury clearly found that the employee felt coerced, and that she, therefore, did not authorize Houston's to access Spec-Tator. The jury awarded $17,000 in compensatory and punitive damages on these claims.
THE NATIONAL LABOR RELATIONS ACT
Employee blogging or social networking activity may also be protected under the National Labor Relations Act. Regardless of whether a collective bargaining agreement is in place, §7 of the NLRA prohibits employers from disciplining or otherwise retaliating against non-supervisory, non-management employees who engage in "concerted activity" for the purpose of "mutual aid or protection." "Concerted activity" is generally defined as activity engaged in with the authority of other employees. Employees, therefore, must work together in order for their activity to qualify as concerted. There must also be a nexus between the activity and the "employees' interests as employees."
"Mutual aid or protection" requires that employees be attempting to improve the terms and conditions of their employment or their positions as employees, through channels outside the immediate employee-employer relationship. This may include discussions about wages, benefits, working hours, the physical environment, dress codes, assignments, and responsibilities.
For purposes of blogging and social networking, the applicability of the NLRA will hinge on whether the activity was concerted. The activity may qualify as concerted if the employee notified other employees about the blog or social network, discussed aspects of the work environment, and permitted other employees to respond and comment. Employers should proceed cautiously when multiple employees engage in criticisms of the employer on a blog or social network.
TITLE VII AND OTHER ANTI-DISCRIMINATION LAWS
As discussed in Part One, Title VII may protect employees disciplined for online activity if that activity reveals a protected characteristic. For example, an employee-blogger who regularly posts about his recent conversion to Islam may be able to allege that his dismissal was a result of his religious beliefs and therefore violated Title VII. In such a situation, the employee may be able to state a prima facie case of religious discrimination if he could show:
• the employer read his blog;
• the blog made the employer aware of his religious faith; and
• subsequent to becoming aware of his faith, the employer fired him.
(Of course, proving that the employer actually read the blog could be very difficult.)
Title VII may also come into play where a discharged employee can show that others who engaged in the same activity were not dismissed. A case in point is the Complaint filed in the Northern District of Georgia in 2005 by Ellen Simonetti -- also known as the "Queen of the Sky." Simonetti was fired after posting on her blog mildly provocative pictures of herself in her Delta uniform. She then filed suit, alleging that male employees who engaged in similar activity did not face any adverse employment action.
OTHER LAWS THAT MAY BE IMPLICATED
Other federal statutes may offer employees protection from discipline related to their online conduct. First are the statutes which offer employees "whistleblower" or anti-retaliation protections. The Family and Medical Leave Act, for example, protects employees who oppose workplace practices made illegal by the FMLA. This opposition could very well come in a blog or social networking post.
In addition, public employers will be limited by the First Amendment when their employees are speaking on matters of public concern. Connecticut employers should also be aware that Connecticut state law prohibits employers from discriminating against employees who exercise their rights to free speech under the federal or state constitution, unless the activity substantially or materially interferes with the employee's job performance or relationship with the employer.
DEVELOPING A SOCIAL NETWORKING AND BLOGGING POLICY
Even if employers ban access to blogs and social networks in the workplace, a policy may still be needed to address acceptable and unacceptable online conduct after working hours. Implementing a policy on the use of blogs and social networks can protect against loss of company trade secrets and injury to the company name, protect against possible harassment of co-workers, and allow the employer to know what is being said about the company. However, employers should be mindful that such a policy, especially a very broad policy, might also lower employee morale, subject the company to bad press, and make the employer accountable for what he or she knows is said online. Thus, any policy must be carefully considered and have distinct goals that take into account the nature of the company and its workforce. While the parameters of the policy will clearly depend on the needs and nature of the business, here are a few elements to consider in drafting a well-crafted policy:
• Cover all forms of online communication and conduct.
• If employees are permitted to access social media at work, ensure that such access does not interfere with work.
• Clearly express that, when using an employer computer system, an employee has no expectation of privacy.
• Prohibit employees from revealing confidential or proprietary information.
• Prohibit employees from revealing personal information of other employees.
• Emphasize that online conduct must not violate the anti-discrimination policy or other codes of conduct.
• Warn that the policy must be read in conjunction with any existing code of conduct, disciplinary scheme, or existing IT policy.
• Prohibit the use of employer logos/uniforms/ brands.
• Emphasize that employees must not imply, explicitly or implicitly, that they represent the company.
• Include a catch-all provision prohibiting conduct that creates a conflict of interest or otherwise harms the employer's business interests.
• Include a catch-all provision prohibiting any conduct that violates federal, state, or local law.
• Direct employees to bring all questions related to the policy or permissible conduct to management.
• Warn about possible disciplinary action if the policy is violated.
Regardless of the parameters of a given policy, an employer must ensure that employees are aware of the policy and understand its parameters. An employer must thoroughly train its employees regarding the policy.
Blogs and social networks hold great potential for employers. Employers can use these forms of communication to advertise, recruit, gather background information on applicants, train and mentor employees, connect and communicate with employees, and quickly share information throughout a company. However, they also pose risks for employers who are slow to recognize the exponentially growing popularity of these sites, the impact that their use may have on the workplace, and the various laws that may be relevant to online employee or applicant conduct. By crafting well-drafted policies now, and ensuring that employees understand what conduct is acceptable and what is not, an employer will be able to avoid many of these risks. “