October 05, 2009
In addition to using social network websites in conducting background checks on prospective employees, employers increasingly are monitoring current employees’ use of online social network websites, and numerous employers have discharged employees because of content posted on such sites. For example, in May 2007, the Olive Garden restaurant discharged a supervisor “after she posted photos on MySpace of herself, her [underage] daughter, and other restaurant employees hoisting empty beer bottles.” In October 2008, Virgin Atlantic Airlines discharged thirteen flight attendants as a result of Facebook postings in which the employees criticized the airline’s safety standards and insulted the airline’s passengers. More recently, the National Football League’s Philadelphia Eagles fired an employee for posting on Facebook that his employer was “retarded” for letting a rival franchise acquire one of the Eagles’ star players.
While no law prohibits employers from searching online social network sites to conduct background checks of current employees or job applicants, employers should take into account several legal risks arising from this practice. In this article we discuss the various employment laws that may be implicated when employers choose to review social network websites. Following this discussion, we analyze legal and business issues employers should consider in order to limit claims resulting from visiting employees’ social network websites. Finally, we propose various policies employers may consider adopting as a way of avoiding or mitigating some of the risks of employees’ use, or misuse, of social network websites.
Employers’ viewing their employees’ or job candidates’ social network websites may provide the basis for claims under the employment discrimination statutes based on employers’ learning facts from such viewings which the employee or job candidate may claim was a legally protected status or activity. If an employer subsequently takes an adverse action against the employee or job candidate within a short time after acquiring knowledge of the protected status or activity, the employee or job candidate may use that information as circumstantial evidence of employment discrimination or retaliation. As discussed below, employers may combat claims built upon such circumstantial evidence by implementing neutral, job-related policies and practices which provide guidance to human resources professionals as to when and how the information gained from social network websites can and cannot be used.
Another risk arising from employers’ viewing social network websites of current and prospective employees is the unwitting application of different standards based on a protected classification which an employee may claim constitutes intentional discrimination. For example, in a high profile case, Delta Air Lines dismissed a female flight attendant after discovering “inappropriate” photographs of the employee in her Delta uniform posted on her blog. The flight attendant sued Delta alleging, among other things, sex discrimination because Delta purportedly failed to discipline male employees who maintained blogs containing similar content. See Simonetti v . Delta Air Line Inc., Case No. 1:05-CV-2321, Complaint filed (N.D. Ga. Sept. 7, 2005).
Legal Activities Laws
Certain states offer varying degrees of statutory protection for individuals against adverse employment actions based on certain defined lawful non-work related conduct. In New York, for instance, an employer may not discriminate against or refuse to hire employees because of their participation in “legal recreational activities” off the employer’s premises during nonworking hours unless the activity “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.” N.Y. Lab. Law § 201d(2)(a)(c), (3)(a). The statute defines “recreational activities” as including “any lawful, leisure activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” While few courts have interpreted this statute – and none appear to have applied the statute to content made available on social network websites — thus far, courts that have analyzed the statute have declined to give “recreational activities” an expansive interpretation. See, e.g., McCavitt v. Swiss Reins. Am. Corp., 237 F.3d 166, 168 (2d Cir. 2001) (dating not a “recreational activity”); Kolb v. Camilleri, 2008 WL 3049855 (W.D.N.Y. Aug. 1, 2008) (after-hours picketing outside of his employer’s facility in protest of certain expenditures not “recreation activities”).
National Labor Relations Act
Employers also should consider whether the National Labor Relations Act (the “NLRA”) prohibits employers from taking adverse employment action because of content prospective or current employees may post to social network websites. To the extent an employee is using the social network site to engage in “concerted activities for the purpose of . . . mutual aid or protection” or if the site relates to a labor dispute, an employee may contend that any discipline related to the contents of the social network site would constitute an unfair labor practice. For example, in Konop v. Hawaiian Airlines, Inc., 302 F3d 868 (9th Cir. 2002), cert. denied, 537 US 1193 (2003), the court held that an airline’s discipline of a pilot who “vigorously criticized” the airline’s management and labor concessions on his personal and restricted website constituted protected union organizing activity.
On the other hand, not all forms of speech that allegedly relate to concerted or collective active activities are protected by the NLRA. For example, employees who engage in disloyal behavior or disparage the employer’s customers or business activities may not be protected by the statute. For example, in Endicott Interconnect Techs., Inc. v. NLRB, 453 F.3d 532, 537 (D.C. Cir. 2006), the D.C. Circuit reversed an NLRB decision holding that an employee’s discharge for his public internet postings protesting recent layoffs constituted an unfair labor practice, finding instead that the employee’s postings on a newspaper’s public and non-password-protected internet forum “constituted ‘a sharp, public, disparaging attack upon the quality of the company’s product and its business policies’ at a ‘critical time’ for the company,” and were therefore not protected by the NLRA.
Terms of Service Violations
Employers also should be aware of whether they are violating a social network website’s terms of service (“TOS”) by using such a website to conduct background checks on prospective employees. For example, MySpace’s terms of service state, inter alia, that “[t]he MySpace Services are for the personal use of Members only and may not be used in connection with any commercial endeavors. Should the issue of an employer’s breach of MySpace’s TOS ever get litigated, employees likely will contend that an employer’s conducting of background checks on prospective employees is connected with a “commercial endeavor” and therefore is prohibited under the TOS. On the other hand, employers may argue that the aforementioned provision in the TOS is meant to prohibit the buying, selling, or advertising of products, but not the conducting of background checks on employees. Employers also may contend that employees cannot enforce the TOS, because it represents a contract between MySpace and its users and has no bearing on claims between MySpace’s users and members of the general public.
In some states, employees may seek to assert common-law breach of privacy claims based on their employers’ accessing their social network websites. For example, in Pietrylo v. Hillstone Rest. Group, 2008 WL 6085437 (D.N.J. July 24, 2008), Plaintiff Brian Pietrylo, an employee at a Houston’s restaurant in New Jersey, created a MySpace page as a forum for fellow employees to “vent” about their experience working at the restaurant. Pietrylo purportedly created the invitation-only user group on personal time and solicited invitations to join the group on personal time. The personal and password-protected webpage eventually became populated with complaints about the restaurant, its customers, and supervisors. Pietrylo’s supervisors ultimately obtained a username and password from a hostess at the restaurant and were able to access Pietrylo’s webpage. After visiting the webpage, the supervisors discharged Pietrylo for violating the company policy mandating “professionalism and a positive attitude.”
Pietrylo and another employee discharged for similar conduct filed a lawsuit alleging, among other things, that Houston’s violated New Jersey’s common-law right to privacy by visiting Pietrylo’s invitation-only internet discussion space. On June 18, 2009, a jury found in favor of the restaurant on Plaintiffs’ claim for invasion of privacy, on the basis that Plaintiffs had no reasonable expectation of privacy in the MySpace group. However, the jury found that the restaurant’s managers violated state and federal laws that protect the privacy of web-based communications, and awarded plaintiffs $3,400 in back-pay and $13,600 in punitive damages. Specifically, the jury determined that the restaurant violated the federal Stored Communications Act, 18 U.S.C. §§ 2701-11, and the parallel state provision in the way that it gained access to the MySpace site, namely management requesting and using the hostess’s password to access the site.
In addition to the numerous legal risks facing employers who visit employees’ social network websites, employers also should consider the public relations ramifications and unwanted media attention that they may face as a result of visiting these websites. The city of Bozeman, Montana provides a very recent example of the type of unwanted publicity that an employer who engages in these types of background checks may encounter. In June 2009, Bozeman sought to change its job application to require municipal job seekers to disclose usernames and passwords for social network websites that they visit. However, almost immediately, the city’s proposed application requirement drew sharp criticism from across the nation. As a result of the criticism received, the city withdrew its password requirement and the city manager apologized to the public.
To avoid or mitigate the risk of employment litigation emanating from employers’ viewing employees’ or job candidates’ social network websites, employers should consider adopting a written employment policy setting forth “rules of the road.” Such a policy will serve the positive function of letting employees know the kinds of comments that “cross the line” from private lawful activity to activity that harms the employers’ legitimate business interests and, therefore, may provide a basis for adverse action. Just as importantly, such a policy will give managers and human resources personnel guidelines they may apply when using information obtained from a social network web site.
Several guidelines employers may consider adopting are as follows:
• require employees whose affiliation with the company is evident to caveat their remarks on the web as reflecting only his or her own views and not necessarily the views of the company or other employees;
• remind employees that their conduct may reflect upon the company and encourage them to exercise good judgment in their web communications;
• caution employees that they may be subject to discipline up to and including discharge for making defamatory, obscene, libelous or disloyal statements pertaining to the company, its employees or customers;
• remind employees that they may not share confidential, proprietary, or private information about the company, its employees or products on the web;
• state that company trademarks may not be used on the web without prior written permission from the company;
• inform employees that they may not sell or promote products or services on the web that would compete with company products or services; and
• advise employees that they may consult with the human resources department with any questions about the company’s views with respect to the rules of the road for web communications and the employer’s legitimate business interests.
Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges LLP, where they practice labor and employment law. Jason E. Pruzansky, an associate in the firm’s Employment Litigation Group, assisted in the preparation of this article.
Reprinted with permission from the October 5, 2009 edition of the New York Law Journal© 2010 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.