• No results found

When Worlds Collide: How the Intersection of Social Networking and the Workplace Creates Peril for Employers

N/A
N/A
Protected

Academic year: 2021

Share "When Worlds Collide: How the Intersection of Social Networking and the Workplace Creates Peril for Employers"

Copied!
7
0
0

Loading.... (view fulltext now)

Full text

(1)

ABA Section of Litigation Corporate Counsel CLE Seminar, February 11-14, 2010 When Worlds Collide: How The Intersection of Social Networking and the

Workplace Creates Peril for Employers

When Worlds Collide: How the

Intersection of Social Networking and

the Workplace Creates Peril for

Employers

Michele L. Maryott

Gibson, Dunn & Crutcher LLP1 Irvine, California

1

This article has been prepared for general informational purposes only and is not

(2)

As the popularity of social networking sites such as Facebook, Twitter and LinkedIn continues to explode, employers face a myriad of risks created by the virtual merging of employees’ private lives and the workplace. With the press of a button, co-workers can share with other co-workers, and even their supervisors, the most intimate details of their lives, including information revealing their sexual orientations, medical conditions and their sexual exploits. All of this can be achieved from anywhere – the local Starbucks, the line in the grocery store or on the couch at home. Given the casual nature of social networking activities, it is not surprising that the heightened sensitivities which stifle inappropriate behavior in the physical workplace or work-related settings cease to exist in this area of cyberspace. This Isn’t Your Teenager’s Social Network Anymore

While social networking sites such as MySpace and Facebook were once the playground of teenagers and college students alone, the demographics have changed dramatically in the past several years. For example, Nielsen reports that the addition of 24.1 million members between the age of 35 and 49 has driven the tremendous growth of Facebook in recent years. Nielsen March 2009 Global Faces and Networked Places, available at http://blog.nielsen.com/nielsenwire/global/social-networking-new-global-footprint/. During the one-year period between December 2007 and December 2008, Facebook logged 13.6 million new visitors who were between the ages of 50 and 64, and the number of minutes spent on Facebook increased 566% from 3.1 billion minutes to 20.5 billion minutes. Id.

Despite these broadening demographics and the increasing number of minutes people are spending on these sites, employers appear to lag behind the times in recognizing the risks that employee social networking activities create for them. Indeed, a recent study by Deloitte revealed that only 26% of individuals knew of specific guidelines issued by their employers as to what they could and could not post on social networking sites; 22% reported that their company had a formal policy governing social

network usage; 23% reported that their company did not have a policy regarding the use of social

networks; and 24% reported that they did know one way or another whether their company had a policy. Deloitte LLP 2009 Ethics & Workplace Survey Results, available at http://www.deloitte.com.

Perhaps the greatest challenge employees’ social networking activities creates for employers is the blurring (or even disappearance) of the line between the workplace and employees’ private lives. According to Deloitte’s survey, 60% of employees believe that their social networking activities are private and none of their employer’s business, while 53% of employers believe they have the “right” to monitor their employees’ social networking activities. Given this disconnect and the collision course it sets in motion, employers will have to carefully develop and implement policies addressing employee conduct in the social networking arena to protect against potential liability. While the case law governing employee and employer rights and obligations in this area has yet to meaningfully develop, a number of recent court decisions offer some guidance to employers who are attempting to navigate these uncharted waters.

Employers Must Encourage Employees to Exercise Appropriate Behavior When Participating in Social Networking Activities

Most employers have in place email and Internet usage policies advising employees that their use of the company network is not private and that the company may access emails and monitor Internet use. As such, most employees appreciate the fact that emails sent over their employer’s email system and Internet websites visited from their work computers can be monitored. However, most employees believe the rules governing their conduct at work do not apply when they visit and “post” on social networking sites. Thus, employers who have clear email and Internet policies and who even prohibit or block the use of certain sites at work are far from immune to the multitude of risks posed by the casual and personal nature of their employees’ social networking activities. Indeed, employees often “friend,” “link with” or

(3)

“follow” their co-workers, supervisors and subordinates. And employees need not rely on their work computers to participate in social networking while at work because most mobile phones have Internet capabilities. This mobility makes it difficult for employers to gain visibility into employee conduct. As the workplace expands beyond employers’ physical locations and outside of their computer networks, some of the harmful scenarios for employers which might arise from the off-duty “connections” among employees are not hard to imagine. However, employers and employees alike have little guidance in terms of appropriate etiquette when it comes to social networking with co-workers, supervisors and subordinates. For example, is it appropriate for a supervisor to invite a subordinate to connect on Facebook? What if the subordinate invites the supervisor – should the supervisor accept? What if the supervisor doesn’t accept an invitation from one subordinate but accepts an invitation from another? And what should Employee A do if her co-worker, Employee B, wants to connect with her but Employee A does not want to connect? Although these awkward “social” situations may not be entirely unavoidable, employers should consider implementing policies, tailored to reflect their respective companies’ culture and values, to help address situations such as these and providing corresponding training to their staff. For example, an employer’s policy discouraging employees from connecting with one another may provide a much appreciated shield for employees, although such a policy will not alleviate every awkward situation.

Awkward “social” interactions aside, employers should also be concerned by the casual nature of their employees’ off-duty online communications with one another. Wise employees will refrain from sending emails over their employers’ system which disparage the company or contain harassing or offensive comments. Many employees will also take pains to scrutinize every word in an email because emails can be misconstrued and forwarded so easily. However, this level of care does not translate to comments posted on social networking sites or blogs, even though employees know their co-workers might view these comments. Consequently, the ramifications of social networking activities may include employer liability for “virtual” sexual harassment by co-workers or supervisors who make inappropriate comments on their workers’ sites, share information about their sexual exploits or “poke” or send “gifts” to co-workers with whom they are “friends.” Further, employers should be concerned about the imputation of supervisory personnel’s knowledge of private information disclosed by employees online that the employees have not shared at the office, such as sexual orientation, religious or political affiliations, or the existence of a medical condition.

In addition, employers need to be concerned about reputational harm they may suffer if employees make negative comments about their work or employer online. Conversely, employees who make positive comments online about other employees by, for example, “recommending” their co-workers to others on sites such as LinkedIn, may also create evidence that would prevent summary judgment or preclude an employer from prevailing on claims that a “recommended” employee was terminated for poor

performance. Recommendations by supervisory personnel present an even greater risk in that regard because a supervisor’s actions or knowledge may be imputed to the employer if a terminated employee later sues for wrongful termination or discrimination.

So in the face of these risks, what can an employer do? Although an employer’s policies will have to be crafted to reflect the company’s values and culture, there are a few basic guidelines that any employer could easily implement in the short term while exploring the potential problems and developing more robust policies. For example, at a minimum employers should consider reminding their employees of the following:

• The information and comments employees post on social networking sites is not private and is likely not protected speech. In fact, in a recent case involving a posting on MySpace, a California appellate court held unequivocally that the plaintiff had no reasonable expectation of privacy as to

(4)

information posted on her MySpace page. See Moreno v. Hanford Sentinel, 172 Cal. App. 4th 1125, 1130 (2009).

• The fact that a worker accepts an invitation to connect online does not mean that the co-worker would welcome hearing about another co-co-worker’s sexual exploits or would welcome offensive comments online any more than they would welcome them in person.

• If employees do not want co-workers to know their political affiliations, sexual orientation or other personal information, they should either refrain from connecting, block co-workers from “following” them or simply not post their personal information.

• Supervisory personnel should not, as a general rule, connect with subordinates on social networking sites. At a minimum, supervisors should refrain from inviting any subordinates to connect with them;

• Employees should be reminded of their duty of loyalty to their employer and strongly

discouraged from making negative comments about or even mentioning the company online. Where applicable, employees must also be reminded of their obligation to retain the

confidentiality of their company’s trade secrets and other proprietary and confidential information.

Employers Must Balance Their Competing Interests of Conducting Diligence Against the Risks Inherent in Obtaining Information Not Otherwise Disclosed by a Job Applicant or Employee In addition to the risks created by employee activities, employers who rely on information gathered through the Internet – particularly through social networking sites – must be aware of the potential pitfalls. For example, some employers believe they have a right, or perhaps obligation, to conduct searches on the Internet about job applicants and current employees to ensure diligence in the hiring and promotion process. Several recent cases demonstrate that employers must exercise caution when using the Internet to screen applicants or employees or when attempting to ferret out employee misconduct. In Gerlich v. U.S. Dept. of Justice, 2009 WL 2959884 (D.D.C. 2009), the plaintiffs filed suit under the Privacy Act and other statutes following the release of a government report revealing that Department of Justice employees had deselected candidates for its prestigious Attorney General’s Honors Program and Summer Law Intern Program based on the political leanings of the candidates. The report stated, and the plaintiffs alleged, that one Department of Justice official had conducted Internet searches regarding the political affiliations of applicants, created printouts of such information and made written comments on the applications concerning the political affiliations of job candidates. Id. at *2. These job candidates were then deselected for interviews. Id. The United States District Court for the District of Columbia held that the plaintiffs’ allegations were sufficient to state a claim under the Privacy Act provision prohibiting the maintenance of records describing the exercise of an individual’s First Amendment rights. Id. at *10-11. Although this case involves a federal statute governing public agencies, private employers should take heed of the lesson in Gerlich. Indeed, private employers should assume that courts will consider whether an employer’s Internet searches reveal otherwise undisclosed information about a candidate, particularly concerning issues about which employers are prohibited from inquiring. In Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), the United States District Court for the District of New Jersey refused to overturn a jury’s award of compensatory and punitive damages to two former employees who had been fired from their jobs as servers in a Houston’s restaurant for comments they posted on a password-protected MySpace discussion group webpage. The jury found

(5)

that the employer had violated the federal Stored Communications Act and the state law equivalent when Houston’s restaurant managers accessed the private webpage five times after obtaining the password from a third employee. Id. at *1. The Court had previously refused to grant summary judgment to the

employer, holding that the third employee’s testimony about the circumstances under which she gave the password to managers created a triable issue of fact. See Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2008 WL 6085437 (D.N.J. 2008). Specifically, the employee testified that she believed she would have been “in trouble” if she had not provided the password upon her manager’s request. Id. at *4. In the end, the Court held that this employee’s testimony “provided evidence upon which the jury could

reasonably infer that Houston’s managers acted with the state of mind proscribed by the federal and state statutes.” Pietrylo, 2009 WL 3128420, at *3. The court also upheld the jury’s award of punitive damages based on their finding that the managers had acted maliciously. Id. at *5.

The Pietrylo case demonstrates that employers must exercise extreme caution when conducting investigations that may implicate employee privacy, even when the employee’s conduct which the employer seeks to uncover or confirm may be adverse to the employer. If an employer learns that it may be suffering reputational harm in connection with an employee’s social networking activities, the

employer should resist the temptation to launch into a “stealth” investigation. A better practice would be to adhere to the employer’s existing policies and practices governing workplace investigations, providing appropriate admonitions to employees participating in the investigation and obtaining consent to access information where appropriate. Indeed, the Pietrylo court’s opinion suggests that had the managers obtained consent in writing from the employee who provided the password after giving her an admonition that she had no obligation to provide the requested information and would not be retaliated against if she chose not to disclose the information, the employer may have escaped liability.

Many employers will face temptations similar to those faced and acted upon by the managers in Pietrylo, not only with respect to suspected employee wrongdoing, but also as a result of genuine curiosity

regarding their employees. However, what an employer knows may help it, but it may hurt it as well. For example, there is no question that the Facebook and MySpace profiles of current and former employees will become a typical source of evidence in employment-related cases and in many cases may be helpful to undercut a plaintiff’s allegations. At the same time, “cyber-snooping” employers may gain access to information about their employees that they might have preferred to not know. Balancing these interests will create challenges for employers until further case law developments make clear the paths they may or may not take.

Does An Employer Have A Duty to Monitor Employees’ Off-Duty Internet Activities?

Several recent cases demonstrate the tensions between an employee’s right to privacy and an employer’s obligation to prevent inappropriate behavior in the workplace. For example, a recent decision by the Wisconsin Court of Appeals provides a spot of comfort for employers who are struggling with the question of whether an employer has an obligation to monitor an employee’s off-duty Internet activities. In Maypark v. Securitas Security Services USA, Inc., 2009 WL 2750994 (Wis. App. 2009), ten employees sued Securitas Security Service, which provided security services to their employer, Polaris, for negligent training and supervision. Specifically, the plaintiffs alleged that they suffered severe emotional distress after one of Securitas’ security guards, who had access to employee photographs used for security badges, appropriated the photographs of approximately 30 female employees by downloading them to a flash drive, printed the photographs at home, adulterated them and then posted them to an adult website. Id. at *1. The trial court found the employer liable for negligent training and supervision, and awarded the plaintiffs $1.4 million in damages for severe emotional distress (a portion of which the court awarded against the plaintiffs’ employer on a hostile work environment claim). Id. at *2. The Wisconsin Court of Appeals reversed the judgment, holding that the security company employer was not liable in a

(6)

negligence action based on its security guard employee’s off-duty internet activities. Id. at *3. Noting that the security guard’s actions were “unimaginable” and that “[i]t would be an understatement to say [his] actions were bizarre and unexpected,” the court concluded that the security guard’s actions were not reasonably foreseeable by the security company employer. Id. at *4. The court emphasized that the security company had provided training regarding sexual harassment and employee theft. Id.

Significantly for employers, the court emphasized that “employers have no duty to supervise employees’ private conduct or to persistently scan the world wide web to ferret out potential employee misconduct.” Id. The Securitas case demonstrates that an employer’s implementation of safeguards to prevent

inappropriate behavior by employees while they are on-duty will aid an employer in defending against claims stemming from inappropriate behavior which occurred off-duty. Notably, employers should bear in mind that some state and federal laws prohibit an employer from taking adverse employment actions against an employee based on the employee’s lawful off-duty conduct.

When it comes to on-duty conduct, an employer who has knowledge of an employee’s inappropriate Internet activity while on-duty cannot necessarily rely on employee privacy concerns to avoid taking action. In Doe v. XYC Corp., 382 N.J.Super. 122 (N.J. Super. A.D. 2005), a New Jersey court held that an employer had breached its duty to exercise reasonable care to report or take action to stop an

employee’s inappropriate computer use in the workplace. The employee’s wife sued the employer for negligence in failing to report or take action to stop the employee’s use of his work computer to post nude photographs of his stepdaughter to the Internet. Id. at 131. The court held that the employee’s privacy interest in the files on his work computer did not trump the employer’s right to monitor the employee’s use of the employee’s workplace computer, especially where the employer (1) was on notice that the employee was viewing pornography on his workplace computer, including child pornography, and (2) had the ability to monitor the employee’s Internet activity. See id. at 126, 128-30. However, the employer in Doe had a policy that it would not monitor the websites visited by its employees, and although several managers were aware of the employee’s conduct, they did nothing to stop it. Id. at 128-29. This case demonstrates that employers may be held liable for on-duty actions of employees, including inappropriate use of computers, and that employers may not be able to rely on concerns regarding

employee privacy to avoid liability once it learns of improper use. Indeed, the key fact for the New Jersey court was the employer’s willful failure to address a problem of which it was aware. Employers should be cognizant that such failure may constitute negligence and create liability.

Employers Should Provide Guidance to Employees Regarding How Their Social Networking Activities May Affect the Workplace

As long as employees “connect” online with their co-workers, supervisors or subordinates, employers will face risks somewhat beyond their control. Consequently, employers should strive to heighten employee awareness regarding the potential ramifications of “bad behavior” on social networking sites on which they are “connected” with co-workers. For example, employers can provide employees with suggested guidelines to follow if the employees choose to connect with their co-workers online. Employers may incorporate this training into their sexual harassment and discrimination prevention training or conduct specific training regarding the pitfalls of social networking with co-workers. An admonition as simple as, “If you wouldn’t say it in person or write it in an email on your work email system, don’t “say” it or write it on social networking sites,” might offer useful guidance to employees who are not considering their entire audience when they share the details of their personal lives on the Internet. Employees should be encouraged to treat every piece of information shared in online profiles, every statement posted online, and every picture and video uploaded as if they were being displayed at work.

In addition to considering ways to educate employees about the impact their social networking activities may have on the workplace, employers should stay attuned to legal developments in this area. As the

(7)

lines between social life and work become blurred in ways never before seen, employers must be prepared to address the challenges created by the intersection of these worlds.

References

Related documents

Japanese Colour Prints and Japanese Illustration 1897, The Colour prints of Hokusai: The Old Man Mad with Painting and An illustrated Catalogue of Japanese Old Fine Arts

The primary objective of this study was to evaluate whether the implementation of a ventilator care bundle in the PICU could simultaneously reduce the incidence of VAP and VAT

Comparable Unit Cost is defined as Net Underlying Unit Cost (Underlying EBIT less passenger revenue and fuel per ASK) adjusted for the impact of industrial action (FY12),

Tenrecs became torpid every day; under fluctuating temperature conditions, they used these fluctuations for passively warming from torpor until maximum nest box temperature,

Re- cently, the Commission on Sustainable Agriculture and Climate Change synthesized a vast array of literature on agriculture, food systems, food and nutritional se- curity,

The merit list of this entrance examination (MGM-SSET-2014) will be used for selection of candidates for admission to all DM & MCh Superspeciality Courses at

6.4 Universities may not, in any way contract out of their obligations in the CPA, for example, its liability to supply quality goods, provide quality service, or liability for

It is for all these reasons that a study o f the experiences and perceptions o f counseling supervisors who experience role ambiguity may contribute to the body o f research on the