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Setting Boundaries on Employee Misuse of Web 2.0

Jonathan S. Goodgold

New Jersey Law Journal

March 18, 2010

Case law coming down throughout not only New Jersey, but across the nation, on both the state and federal levels, are just beginning to touch on the employment ramifications of Web 2.0. While most of the cases reported have not yet encompassed the differences between employee-owned versus employer-issued computers, PDAs, BlackBerrys, etc., they are important for policies and notices given to employees about what activity is considered improper and what activity could be punishable by up to and including termination.

As of this writing, there are some, but not a significant number, of cases dealing with Web 2.0 and the need for employment policies outlining acceptable and improper use of such technology. These issues will continue to be raised within and without the workplace until there are enough cases dealing with issues that Web 2.0 presents to form a body of law and guidelines for both employers and employees. Also of note is the intersection between general employment law, privacy rights, First and Fourth Amendment, wiretapping, and federal and state analogs to the Stored Communications Act. It will behoove employers to have a written policy putting employees on notice as to what is expected and tread cautiously in the interim.

While this writer is of the opinion that employers have the right to search the web and protect its workplace, product, and image from being put into a negative light, improper publication of employer work product/trade secrets and negative publicity, there are limits to how such information may be obtained. The unpublished decision of Pietrylo v. Hillstone Restaurant Group d/b/a Houston’s, Civil Case No. 06-5754, provides a cautionary tale as to what an employer may not do. In that case, the district court upheld a modest compensatory damage award for the two plaintiffs ($2,500 and $903, respectively) and a modest stipulated punitive damages (four times the compensatory damages). The facts are simple: employees of a Houston’s restaurant created an invitation-only MySpace account for former and current Houston’s employees to vent about company policies and actions. One of the invited employees showed a manager who mentioned the site to other members of management. The employee’s superiors requested her to provide the password to the MySpace account, which she felt compelled to do. The managers accessed the account a number of times and eventually fired the plaintiffs. The court upheld a jury verdict under the stored communications acts. The importance of this case, while not touching on employee policies, is that employers must not act in a manner not “authorized” under law. In this case, the forcing of employees to provide passwords for sites that would not be viewable to the employer otherwise is not considered “authorized.

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