Employer Access to Private Employee Social Networking Sites
by: David Melton and Colleen Howard
These days, employees are voicing their work-related complaints on social networking sites such as MySpace, Facebook and Twitter. While employers have a right to be concerned, the temptation to access an employee's "private" website should be avoided.
In June 2009, a federal jury in New Jersey deliberated about whether an employer violated the federal Stored Communications Act when it accessed an employee's MySpace group. In Pietrylo v. Hillstone Restaurant Group, Brian Pietrylo, an employee at a restaurant owned by Hillstone called "Houston's," created a private MySpace group called the "Spec-Tator." The group's purpose was to permit employees to "vent about any BS we deal with" at work. His invitation to "let the s**t talking begin" is indicative of what type of discussions the group planned to host. In order to join the group, interested parties needed to receive and accept an invitation from Pietrylo. Only members were able to see the group's postings, which included vulgar and explicit language as well as references to illegal drug use and violence.
Houston's restaurant greeter, Karen St. James, joined the group and later used her account and personal password to access the group postings to show to a Houston's manager. Not surprisingly, he found the postings to be offensive and notified other managers about the group. Because the site could only be viewed by its members, managers asked St. James for her password to access the group postings. She obliged, but later testified that she believed a refusal would cause her to get "in trouble."
After Houston's management reviewed the group postings they fired Pietrylo and another employee over concerns that the website would affect Houston's operations, and that the postings violated Houston's four core values: professionalism, positive mental attitude, aim to please approach, and teamwork. The two terminated employees sued Houston's, alleging violations of the federal Stored Communications Act and a parallel New Jersey state provision, wrongful termination in violation of public policies favoring free speech, wrongful termination in violation of public policies against the invasion of privacy, and the common law tort for invasion of privacy.
The Stored Communications Act makes it unlawful for someone to intentionally access a facility where electronic communication service is provided or stored "without authorization." For the jurors, the issue in Pietrylo was whether Houston's management had authorization to access Spec-Tator when it requested St. James' password, or whether the password was given under duress. The jurors concluded that the managers did violate the Stored Communications Act, and awarded the former employees back pay and punitive damages. However, the jury rejected the former employees' privacy claims, stating that they did not have a reasonable expectation of privacy in the MySpace group.
What Can Employers Do?
Although this case is from New Jersey, it is based on federal law which could affect California businesses. Employers should carefully consider whether accessing the information stored on an employee's private social networking website is necessary. Most likely the risk of being found liable for punitive damages outweighs the benefit of looking at an employee's private social networking website.
Employers should also take steps to reduce the likelihood that an employee would engage in actions similar to Pietrylo's. There are a variety of methods for controlling employees' behavior on the job site. Policies dictating that employees have no right to privacy when using company computers or company internet access puts employees on notice that their internet behavior can be monitored. Software which blocks or prohibits access to websites like MySpace, Facebook and Twitter can also be useful in deterring employees from airing their workplace grievances online.
It is also feasible to protect an employer's interest when the employee accesses their social networking site outside of the office. Policies stating employers have the right to terminate employees for disparaging the employer provide the ability to take action if employees post negative information about their employer on their personal time. Additionally, any publicly displayed information about trade secrets or proprietary information can also be included in a "right to terminate" policy.
For additional information on these and other employment law updates, employers are encouraged to seek legal counsel. Each business is different, requiring different policies to protect varying interests.