When an employee named Pietrylo thought it would be funny to create a MySpace user group "Spec-Tator" so that current and former employees could vent about their experience working at his company, he started a legal firestorm.
The user group was invitation only and required a password to enter and view. Pietrylo's initial posting said Spec-Tator would allow invitees to "vent about any BS we deal with...without any outside eyes spying in on us.... Let the shit talking begin."
Spec-Tator quickly filled with complaints about the restaurant and the supervisors. When an employee let her supervisor in on the joke, the supervisor and employee had a good laugh. Soon afterward, a second supervisor demanded the employee's username and password to access the site. Although no actual threat was made, the employee conceded, fearing she'd lose her job if she said no.
The restaurant then fired Pietrylo and another Spec-Tator user, Marino, citing violation of company policy involving "professionalism and a positive attitude."
A federal lawsuit followed, with the former employees alleging their employer violated their freedom of speech, their common law right to privacy and the Stored Communications Act (SCA). Currently, a U.S. District Court is deciding whether employees need to fear discussing work-related topics on their own time on personally owned computers.
When the company petitioned the Court to give it a summary judgment affirming its right to fire its employees for violating company polices, the District Court ruled in favor of the company on the issue of free speech, but said a jury needed to rule on the privacy and SCA issues, which prohibit intentionally accessing stored communications without authorization unless a user of the service okays the access.
Key issues impacting the Court's decision included whether the employer unfairly coerced the employee to give her supervisor her user name and password and thus couldn't use the information it gained and whether the employees could legitimately expect privacy on an Internet-based, password protected forum.
Pietrylo and Marino claimed their employer gained access to the forum only after they "strong-armed and threatened a member of the private group so that this member was forced into providing them with the member's email address and password." The employee stated she wasn't explicitly threatened but gave the access because she feared she "would have gotten in some sort of trouble."
In defending the firings, the employer pointed out that the site's posts included sexual remarks about management and customers and references to violence and illegal drug use, all of which contradicted core employer values of professionalism, positive mental attitude, an aim to please approach and teamwork. Pietrylo described these remarks as "just joking". Pietrylo also maintained that neither he nor any other "member of the group accessed the private group during work hours" and thus had the right to privacy. In 2009, a jury found that the company's managers had violated the SCA by intentionally accessing the MySpace page without authorization. The jury found in favor of the employer on the claim of invasion of privacy, stating that the plaintiffs had no reasonable expectation of privacy in the MySpace group.
Given the results of this case, if you discover your employees talking about your company on MySpace, LinkedIn, Facebook or YouTube, exercise caution. Employees have the right to blow off steam on their own time. Unless your employees make statements that damage your interests or violate substantial company policies, you need to leave your employee's password-protected social media site alone.
At the same time, you may find intriguing and useful information via social media. In two recent and real examples, employees working for two different employees asked for and received paid bereavement leave because a dear aunt passed away. One employer then learned that their employee actually enjoyed a long weekend hunting trip. The other employer learned through the employee's time-dated Facebook page that he'd enjoyed his vacation drinking beer in a tutu in a New York bar.