Defending The Digital Workplace

An ebusinesscounsel.com publication

Social Networking Risks Part II: Employer in Bulls eye for Wrongfully Accessing MySpace Page

Networking BullseyeA prior post, Digital Security Report: Social Networking Sites Expand Risks for Employers, discussed the technological and legal risks social networking sites pose for employers. As an exclamation point to that post, an employer was recently caught in the social networking “bulls eye” when a jury returned a verdict against the employer for wrongfully accessing an employee’s MySpace page.

A restaurant employee created a discussion group about his workplace on his personal MySpace web page. The discussion group, named the “Spectator,” was a “private” group (or at least what passes as private nowadays), accessible only by invitation. Those who accepted the invitation became members and could log on at any time to participate in the group’s stated mission: to “talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in.” (I’m sure another employee already created the discussion group to “talk about socially important issues relevant to the improvement of society and improvement of the human condition.”).

At some point a hostess and group member showed the discussion group to a manager. This eventually lead to management asking the hostess for her sign-in information. While she provided her log-in information, the circumstances of this exchange were disputed: Management argued that the sign-in information was voluntarily provided by the hostess. The employees argued, based on deposition testimony by the hostess, that she felt pressured to turn it over. In any event, the restaurant employer terminated the employee/creator of the MySpace page and a contributing “author” after it discovered sexual comments about employees and customers, disparaging jokes about company practices, and references to drugs and violence.

The discharged employees sued their former employer alleging, among other things, that the company violated the federal Stored Communications Act and invaded their privacy. Click here for a copy of the the Complaint. The case – in large part – hinged on the hostess’s testimony that she felt pressured to disclose her log-in information because she feared discipline for non-cooperation. Unfortunately for the employer, the jury believed the hostess was pressured into turning over her sign-in information.

The jury awarded each plaintiff the maximum back pay that could be awarded — a total of approximately $3,500 — and found that the employer had also acted maliciously, i.e., had engaged in “intentional wrongdoing ….” That finding allowed the plaintiffs to recover punitive damages and the actual damages awarded also triggered the Stored Communications Act’s right of an aggrieved party to recover attorneys’ fees.

This case illustrates a number of points that employers already know – investigating employees and suspected misconduct has risks if not done properly (and even if it is done properly). For points of consideration as to minimizing these risks, see Mishandling Investigations of Employee Misconduct – That’s What She Said. Also, the post referenced above (click here) provides additional considerations employers may consider when it comes to social networking sites. And, as always, feel free to contact me for additional thoughts on these subjects or to share your experience. Thanks.

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