Wednesday, July 15, 2009

Employees’ social networking continues to confound employers

Let’s suppose that you learn that a group of employees have created an on-line group that’s sole purpose is to provide a forum for other employees to bash your company. Do you have the right to require the employees to provide the password to enable you access the forum and its members? According to one federal court in New Jersey, the answer is no.

According to, a federal jury has awarded $15,000 to two restaurant employees terminated for criticizing their employer on MySpace. The jury determined that by requiring the employees to divulge their passwords, the employer violated the Stored Communications Act, a federal law that extends liability to parties that exceed authorization to access electronic communications.

This area of the law is decidedly gray. The question for you, as an employer, to ask yourself before you undertake a gray-area employment practice is whether you want to foot the legal bill to prove its legality if a lawsuit is filed. In the case discussed above, the restaurant did not have to access the on-line forum for grounds to terminate the two employees who administered it. A manager had reliable information that the two at-will employees were acting unprofessionally by flaming management. While the damages to be paid were low, the attorneys’ fees expended by the employer to defend its practice were certainly significantly higher. Companies should consider letting others push the legal envelope and only adopt tried and tested employment policies and practices that clearly pass legal muster.