No.
12
eHandout Business & Professional Ethics
Employer Eavesdropping Legal or Not?
APRIL 23, 2009
Employers Watching Workers Online Spurs Privacy Debate
By DIONNE SEARCEY
By now, many employees are uncomfortably aware that their every keystroke at work, from email on office computers to text messages on company phones, can be monitored legally by their employers. What employees typically don't expect is for the company to spy on them while on password-protected sites using nonwork computers. But even that privacy could be in jeopardy. A case brewing in federal court in New Jersey pits bosses against two employees who were complaining about their workplace on an invite-only discussion group on MySpace.com, a social-networking site owned by News Corp., publisher of The Wall Street Journal. The case tests whether a supervisor who managed to log into the forum -- and then fired employees who badmouthed supervisors and customers there -- had the right to do so. The case has some legal and privacy experts concerned that companies are intruding into areas that their employees had considered off limits. "The question is whether employees have a right to privacy in their non-work-created communications with each other. And I would think the answer is that they do," said Floyd Abrams, a First Amendment expert and partner at Cahill Gordon & Reindel LLP in New York. The legal landscape is murky. For the most part, employers don't need a reason to fire nonunion workers. But state laws in California, New York and Connecticut protect employees who engage in lawful, offduty activities from being fired or disciplined, according to a report prepared by attorneys at the firm Proskauer Rose LLP. While private conversations might be covered under those laws, none of the statutes specifically addresses social networking or blogging. Thus, privacy advocates expect to see more of these legal challenges.
Dr. David E. McClean
No. 12
eHandout Business & Professional Ethics
In February, three police officers in Harrison, N.Y., were suspended after they allegedly made lewd remarks about the town mayor on a Facebook account. The officers mistakenly thought the remarks were protected with a password, but city officials viewed the page, said Harrison police chief David Hall. The remarks about Mayor Joan Walsh might have violated the officer's code of conduct, he said. Mr. Hall said the town board was considering firing the officers. The policemen have asked a federal judge in White Plains, N.Y., to limit the town of Harrison's inquiry into the online postings, citing privacy concerns, said Donald Feerick, the officers' attorney. Calls to Ms. Walsh weren't returned. The case in New Jersey centers on two employees of Houston's restaurant in Hackensack, bartender Brian Pietrylo and waitress Doreen Marino, who in 2006 created and contributed to a forum about their workplace on MySpace.com. Mr. Pietrylo emailed invitations to co-workers, who then had to log in using a personal email address and a password. "I just thought this would be a nice way to vent...without any eyes outside spying in on us. This group is entirely private," Mr. Pietrylo wrote in his introduction to the according forum, to court filings. On the forum, Mr. Pietrylo and Ms. Marino, who was his girlfriend, made fun of Houston's decor and patrons, and made sexual jokes. They also made negative comments about their supervisors. The supervisors were tipped off to the forum by Karen St. Jean, a restaurant hostess, who logged into her account at an after-hours gathering with a Houston's manager to show him the site. They all had a laugh, Ms. St. Jean said in a court deposition, and she didn't think any more about it. But later, another supervisor called Ms. St. Jean into his office and asked her for her email and password to the forum. The login information was passed up the supervisory chain, where restaurant managers viewed the comments. The following week, Mr. Pietrylo and Ms. Marino were fired. Houston's managers have said in court filings that the pair's online posts violated policies set out in an employee handbook, which include professionalism and a positive attitude. A lawyer for Hillstone Restaurant Group, which owns Houston's, declined to comment. In their lawsuit, Ms. Marino and Mr. Pietrylo claim 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. But the courts might not view online musings as private communication. "You can't post something on the Internet and claim breach of privacy when someone sees it," said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J. Dr. David E. McClean
No. 12
eHandout Business & Professional Ethics
Ms. St. Jean said in a deposition she feared she would be fired if she didn't give up her password, a twist in the case that Mr. Maltby says could sway a jury against the company. Labor and legal experts say the outcome of many employee privacy cases hinges on workers' expectations of their privacy rights -- particularly whether they have been given notice that they are subject to monitoring. In the Houston's case, the workers had no idea their online activities outside of work could be monitored, says their attorney, Fred J. Pisani. A trial is set for June 9. Write to Dionne Searcey at [e-mail] Printed in The Wall Street Journal, page A13 --------------------------------------The Outcome
Settlements and Verdicts
Restaurateurs to Pay Damages for Infiltrating Staff MySpace Forum
Restaurant managers in Newark, NJ, have been fined by a federal jury for surreptitiously monitoring employees' postings in a MySpace gripe group. The jury ruled that the managers had violated state and federal laws designed to protect privacy of internet communications, like the gripe group. Brian Pietrylo and Doreen Marino, who worked at Houston's restaurant in Hackensack, NJ, were fired for criticizing their bosses in postings they made in May 2006. However as a result of the ruling the jury has awarded the watiers a total of $3,400 in back pay and $13,600 in punitive damages. JUN-18-09: Restaurateurs to Pay Damages for Infiltrating Waiters' MySpace Forum [NEW JERSEY LAW JOURNAL: RESTAURATERS FINED FOR INFILTRATING A STAFF MYSPACE FORUM ] Source: lawyersandsettlements.com
Dr. David E. McClean