Delaware Employment Law Blog

A new decision from the Third Circuit Court of Appeals provides public employers with some additional guidance regarding employee internet activity. In the case of Beyer v. Duncannon Borough, police officer Eric Beyer was terminated from his position after he posted anonymous online comments, critical of the Duncannon Borough Council. More specifically, Beyer criticized the Council for its opposition to the purchase of new AR-15 rifles for the police department.

Upon his termination, Beyer filed a lawsuit against the Borough, alleging violation of his  First Amendment rights. Pursuant to the U.S. Supreme Court's decision in Garcetti v. Ceballos, a public employee's speech is only protected by the First Amendment if the employee (1) speaks as a citizen (2) on a matter of public concern. Applying this standard, the District Court dismissed Beyer's claim, holding that he was speaking in his official capacity as a police officer, not in his private capacity as a citizen. Beyer appealed the dismissal to the Third Circuit.

In reviewing Beyer's appeal, the Third Circuit placed significant emphasis on the nature of Beyer's speech--anonymous internet posts. The Court found that anonymous posting supported both prongs of the Garcetti analysis. First, the Court indicated that anonymous online postings are inconsistent with conduct performed in an official capacity. As a result, the Court found that it was more likely that Beyer was speaking as a private citizen. Second, the Court found that the broad dissemination of Beyer's statements over the internet supported the argument that he was speaking on a matter of public concern. Based on the foregoing, the Court reversed the District Court's dismissal.

So, what's a public employer to do? The Third Circuit's decision does not prohibit monitoring of employee internet activity pursuant to a reasonable policy. It does, however, limit a public employer's ability to discipline its employees for anonymous online activity critical of the employer. Going forward, public employers should be particularly careful of any disciplinary action taken in response to such conduct, and when in doubt consult an attorney.

When a former employee sues his former employer, an immediate issue of concern is how to preserve all electronically stored information (ESI) that may be relevant to the claim. Failure to do so may result in a claim of spoliation, sanctions against the employer and its legal counsel, or even an adverse ruling. Good employment counsel understands these consequences and how to avoid them in the first instance.

One of the most common steps is to have the employee’s computer forensically imaged by an expert. The expert will also preserve the employee’s company e-mail account. But this does not address the possibility that the employee may have sent e-mails from his work computer via a web-based e-mail service, such as Yahoo or G-mail. The law is not clear on this point and the defensibility of this practice can vary depending on the content of the e-mails—which, of course, the employer will not know until it looks.

There are several laws that employers risk violating by accessing an employee’s “personal” or web-based e-mail account. The federal Stored Communications Act is one such law and is the one that seems to result in more liability than others. A decision from late last year provides a recent example.

In Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, two employees prepared to open a competing fitness center with their then-employer. One of the employees quit and the other was fired. After the second employee was terminated, the employer accessed and printed emails from his web-based e-mail accounts. Although it was a disputed issue, the employer claimed that the employee had saved his username and password to the employer’s computer system.

The employer filed suit in New York state court to enforce a non-compete agreement and prevent the employees from opening their competing business. The court denied the request for an injunction and the employees removed the case to federal court, where they brought a counter-claim against the employer based on the allegedly improper access of the e-mails. At the request of the employees, the court ordered the employer to return all e-mails and prohibited their use in the case.

The court’s decision was based on its finding that the employer’s access of the employee’s emails violated the Stored Communications Act (SCA), which prohibits unauthorized access of e-mail correspondence that has been saved or stored once sent (among other things). The employees were awarded damages in the relatively small amount of $4,000 but I’m sure this felt like anything but a victory for the employer. The employer contended that it had done nothing wrong even if it had accessed the e-mails—they were, after all, stored on the employer’s computers, along with the username and password to access them. Worse yet, the e-mails supported the employer’s claim that the employees had been preparing to compete during their employment and had gone on to open a competing business.

The lesson from this case and the others like it is to be extremely cautious when deciding whether you may lawfully access an employee’s personal e-mails. Additionally, employers should revisit their computer-usage policies to make sure that the language is crystal clear that employees should not expect that their use of company computers will be considered private—including all Internet activity and, specifically, web-based e-mail accounts to the extent they are accessed via the employer’s computer.

Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, No. No. 08 Civ. 4810 (THK) (S.D.N.Y. Dec. 22, 2010).

[Thanks to Venkat and his post on the Technology and Marketing Law Blog for bringing this case to my attention.]

An appeals court in California recently decided that emails sent by an employee from her work email address to her attorney are not protected by the attorney-client privilege. In the case of Holmes v. Petrovich Development Company, LLC, an employee sued her employer for wrongful termination. Prior to filing her lawsuit, she had exchanged emails with her attorney, using her office email account. The employer used the emails in its defense, and the employee objected, claiming that they were protected by attorney-client privilege.

The Court disagreed and found that the emails were not protected by the privilege.  The court relied on the fact that the employer’s handbook expressly stated that an employee’s emails might be monitored. Such a warning, the Court concluded, made the employee’s emails akin a conversation held in the company’s conference room, with the door open, speaking in a loud voice. The California Court’s decision is in keeping with the Supreme Court’s 2010 decision in City of Ontario v. Quon, in which the Court held that an employee did not have an expectation of privacy in his text messages, sent using an employer-provided pager. This case, however, takes Quon to its logical conclusion, holding that in the absence of a reasonable expectation of privacy, the attorney-client privilege cannot attach.

As Delaware employers should know, they are required by statute to inform employees prior to monitoring an employee’s telephone, email, or internet use. 19 Del. C. § 705. Thus, under the California Court’s logic, any Delaware employee who has received notice of email monitoring under Delaware law has waived the attorney-client privilege as to any emails exchanged with the employee’s attorney, using his or her work email account. It is important to remember that the Delaware courts have not ruled on the issue of attorney-client privilege for work emails. However, this case is a valuable reminder that electronic communications are rarely as private as they appear, and we should all conduct ourselves accordingly.

Employers don't care that their employees browse the internet all day long.  They don't care that employees do their holiday shopping online from the comfort of their offices.  Employers don't care that employees' internet usage exposes their companies to substantial security risks.  I'm convinced--they just don't care. 

Most employers do not have any rules about online shopping during working time.  And, of those employers who do have some sort of web policy that limits employee use, just a few have a program in place to monitor online activities. 

Millennials are the most likely group of employees to put their companies at risk over the holiday season.  An estimated 4 out of 10 U.S. workers aged 18-24 will spend up to five hours shopping online--on their work computers--this holiday season, according to the Shopping On the Job survey. 

That's more than half a working day!  

Not only are Gen Y employees the most likely to browse the web for that hard-to-find gift but they are also the least worried about the vulnerability of their work computers.  Millennials tend to be less concerned about safe web browsing when compared to their older colleagues. 

Despite the many voices of concern that online activity will have a negative impact on productivity and will expose the company's internal network to serious security risk, there doesn't seem to be much to prevent it. 

Is this because employers really don't understand the amount of potential loss?  Or do they not realize that, without a proactive procedure in place to deal with this risk, employees are not likely to change their habits?  Or maybe employers don't know what types of procedures to implement as a way to combat the potential losses associated with employees' online use during the holiday season. 

Other Posts on Electronic Monitoring in the Workplace:

Survey Says:  Employers' Policies on Technology in the Workplace

Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”

Blogs In the Workplace

Somebody's Watching You:  New Data on Electronic Monitoring by Employers

An employer's right to monitor employees' electronic communications is a very popular topic.  There are numerous questions in this area of the law that remain unanswered.  For example, can an employer can lawfully retrieve an ex-employee's personal e-mails sent and received from the company's computers?  The 9th Circuit took a shot at another big question earlier this year in Quon v. Archer, when it held that an employee's text messages were personal and could not be viewed by the employer--even though the pager used to send and receive the text messages was the employer's property.  Employees' text messages can result in significant consequences for their employment--just ask the former mayor of Detroit. 

What seems to get many employees into trouble is their misconceptions about the security of their electronic data.  It seems that many workers don't believe that their employers could access electronic mail and messages, even if the employer was inclined to do so.  Well, that is just plain wrong.  Electronic data can be retrieved.  And it's a lot easier than you may think.  A new product on the market, Sim Card Spy Elite by Brickhouse Security, is a compelling example of this fact.

The Sim Card Spy Elite is a recovery device that can retrieve "deleted" data from a SIM card.**  Just pop the SIM card out of a cell phone and insert it into the Spy Elite.  Then insert the Spy Elite into your computer and, Voila!  All of the data that you thought had been deleted from the cellphone is instantly restored.  Names, text messages, and last-dialed numbers are given new life.  The data can be viewed, printed, and even edited--all for the low price of $199.95.   

As technology continues to improve, powerful tools like this are going to become easier and easier for the masses to obtain.  No longer are these items accessible only to security insiders.  Not only should employees be wary of the potential use of these tools by their employers but, as the Larry Mendte saga made evident, employers must also be cognizant of the possible use of spy devices by employees as tools for coworker sabotage and espionage.  It's not as fictional as it may sound.  Just ask Alycia Lane.

**A SIM card is a tiny circuit board for cell phones that contains the user's account information. SIM cards are interchangeable between phones, allowing users to program a new phone by just switching the SIM card.

The extent to which an employer may access an employee's personal e-mail account is an unsettled issue.   Many employers have policies in place that either prohibit or significantly limit an employee from accessing personal e-mail during work hours.  Most employers have (or, if not, should have) a right-to-monitor policy, which notifies employees that the employer may actually monitor access to personal e-mail accounts if the employee is using company equipment.  A recent decision from a federal court in Florida supports the employer's position that it can compel an  employee to turn over e-mail from a personal account.    

In

(pdf), a breach of employment agreement and misappropriation of trade secrets case, an employer moved to compel production from the employee's personal Yahoo! e-mail account.  Although the employee claimed he could not produce any e-mails because he presumed they had been destroyed by Yahoo!, the only support for his position was a generic letter from Yahoo! which indicated the account at issue had been deactivated. 

Not surprisingly, the court found the employee's explanation dubious--even more so after the court learned that the employee untimely identified his personal account because, in his opinion, production of e-mails would be "impossible."  According to the employer, the employee used this specific personal account to engage in the activities upon which the entire lawsuit was based. 

Thus, given the potentially high evidentiary value of the e-mails, the court sanctioned the employee (although any potential fine is dependent upon how successful the employee is in his court-ordered attempt to obtain the e-mail from Yahoo!).  The court further cautioned that if it turns out the employee's failure to identify his personal e-mail account and obtain messages from his account results in the spoliation of evidence, the court will consider serious penalties. 

According to the AP, Larry Mendte has admitted that he hacked into Alycia Lane's e-mail and leaked her private information to a reporter from the Philadelphia Daily News.  This admission comes just two months after Mendte's home was raided by the FBI and his computers from home and work were seized.  Although not likely, Mendte could be sentenced to up to five years in prison when he is sentenced in November.

Mendte admitted that he viewed hundreds of e-mails after installing a keystroke-tracking software on her computer at work.  Lane maintains that she complained about the possibility that her e-mails were being leaked but her employer, KYW-TV, "treated her as if she was paranoid."  Lane claims that her career has been ruined as a result of Mendte's behavior.

Employee-privacy rights.  Compensation-based jealousy.  Bitter co-workers.  Electronic monitoring.  Gender discrimination.  Clash of the Gen X and Baby-Boomers, even?  The continuing saga involving former news anchors Larry Mendte and Alycia Lane has all of the makings of an employment-law thriller. 

Last we checked in with the two former news anchors, KYW-TV announced its decision to terminate long-time host, Larry Mendte, following a federal investigation and raid of Mendte's home and office.  On Monday, July 21, the U.S. Attorney's office filed a federal criminal information charging Mendte with a single felony count of intentionally accessing a protected computer without authorization.  See the full Information here: 

The allegations, as detailed in meticulous fashion in the Information, are based on the government's claim that Mendte hacked into Layne's personal e-mail accounts and released the info he stole to the press and others.  The hacking is said to have gone on for a period of two years but, last quarter alone, is alleged to have tapped into her accounts approximately 537 times.  Lane's lawyer is reported so say that Mendte was jealous of his younger co-host, who garnered lots of attention and who made $100,000 more than him a year. 

That alleged jealousy could land Mendte with a jail sentence of up to six months.

The Acting U.S. Attorney Laurie Magid, explained the government's interest in the case.  "We live in an age in which many people exchange and share personal, sensitive information by e-mail every day."

This is a great lesson for employers.  Privacy rights are on the minds of employees everywhere.  It's an already-serious issue when employers monitor their employees' e-mail and internet use.  But add to that a potential threat from co-workers and privacy paranoia seems like a very realistic possibility.

For earlier episodes in the soap opera:

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Pardon Me? Anchorwoman’s Cursing Caught on Live TV

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses.

The lines of privacy in the workplace are blurred, at best. There are lots of questions about the limits placed on employers when it comes to monitoring their employees' technology use.  We do know that employers should notify employees if the company wants to reserve the right to monitor e-mails, voicemail, and internet access.  In Delaware, this notice is mandatory.  But it is not clear whether this notice can extend to web-based, personal e-mail accounts, like G-Mail or Yahoo!, when the accounts are accessed by employees during working time on a company-provided computer, accessing the internet through the company's server.  (See my previous post, Suit Raises Tough Questions About Privacy Rights of Former Employees for a case involving these facts; and if you're still not sure, just ask the Mayor of Detroit, Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”). 

And that is just the tip of the iceberg.

A recent decision from the Ninth Circuit Court of Appeals has added another layer of complexity. In Quon v. Arch Wireless Operating Company, the court found that the employer-defendant violated its employee's rights by reading his text messages without his consent.  The case was brought by a police officer, whose text messages were reviewed by his boss, who had obtained them from the internet service provider.  The reason given by the officer's supervisor was fairly innocuous--to determine whether the officer was using his city-issued pager for personal communications. 

The important take-away from this case is consent, consent, consent.  The court found that the officer had a reasonable expectation of privacy in the text messages.  Had the employee consented to the employer's search, the whole suit would have been avoided. 

And how can you get an employee to consent, you ask?  Easy.   By having all employees read and sign a comprehensive electronic-monitoring policy at the time of hiring. 

Already doing that? Great.  Now get a Gen Y to read it.  Have him or her tell you about all of the types of technology you've missed.  Does your policy even cover text messages? Now's the time to check. 

Employer monitoring of employees' e-mail and internet usage is on the minds of many.  In order to monitor lawfully, employers must notify employees of their intent to monitor so that the employee does not have a legitimate expectation of privacy when sending e-mails and browsing the web at work.

Delaware employers must give such notice by law. But the N.Y. Times reports about a suit that raises a tougher question--a case in which a former employee alleging that his former employer read his private Yahoo! e-mails after the employee had been terminated.

This case, recently filed in federal district court in Connecticut, raises two fairly novel issues: (1) can employers lawfully read their employees' personal e-mails if the e-mail accounts were accessed on company time on a company computer; and (2) assuming they can, are employers able to do so after an employee has left the company--in other words, how far will that notification protect employers?

Web-based email, like Yahoo! and G-Mail, are not controlled directly by the employer.  But the employer does own the computer used to access the internet, which weighs in favor of the right to monitor personal accounts.

Perhaps the bigger question in this case is how the employer accessed the former employee's account?  They claim that he used a company computer without authorization after he was fired to send trade secrets and confidential information to his Yahoo e-mail account.  The information, according to the company's lawyer, included customer contact lists, terms of deals, brokers who'd sent business to the company, and personal employee data.  All of which, says the company, would be in violation of his employment agreement. 

It seems that there are multiple possible claims that could arise from these facts:

1. Employee vs. Employer for breach of privacy;
2. Employer vs. Employee for breach of contract (his employment agreement);
3. Employer vs. Employee for trade secret violations
4. Employer vs. Employee for violation of the Computer Fraud and Abuse Act, which has been used when employees wrongfully access their company's computer network and cause harm as a result;

3 for the Employer and 1 for the Employee, according to my count.  Of course, I could be missing some, so let me know if you think of others and I'll include them in the tally.

We'll keep you posted on what could be an important decision in the new legal territory of employees' privacy rights.

Other Posts on Electronic Monitoring in the Workplace:

Survey Says:  Employers' Policies on Technology in the Workplace

Is It Time to Update Your Electronic Communications Policy? If you’re the Mayor of Detroit, the answer is “Yes”

Blogs In the Workplace

Somebody's Watching You:  New Data on Electronic Monitoring by Employers

Employees' privacy rights.  They're everywhere.  Lately, they've been in the KYW-3 TV Newsroom.  Two former Philadelphia co-anchors have put e-mail privacy in the spotlight.  Larry Mendte, who is accused of reading and leaking Alycia Lane's private e-mail account, was fired today.  His termination comes in the middle of a federal investigation, which involved a raid of Mendte's home and office and the removal of "computer equipment," and follows just days after Lane filed her long-threatened suit against their shared former employer.

This scandal is a big deal in the Philadelphia local news.  And perhaps that has something to do with the fact that Lane had lost her sugary-sweet charm after the third or fourth scandal.  Or maybe it's because Philly is known equally just as much for relentlessly jeering unpopular sports figures as it is for brotherly love.  But maybe it's because this is a story that so many people already know.  They've lived it themselves.

Mendte is suspected of accessing Lane's account "possibly hundreds of times" and then leaking the information to their boss, the news station, or the press.

So what happens to Mendte if it's later found out that he did secretly sabotage his former partner at the news desk?  Not much.  Mendte isn't a supervisor so, unless the station is found to have known about the snooping or somehow endorsing it, the station will not be held responsible for the acts of Mendte.  Obviously, losing his long-time job, where he spent many years enjoying the favor of Philadelphians, is a big deal and probably one of the most severe consequences he could face.

And Lane could certainly sue Mendte, as well as the station.  It's unlikely that she will, though, given the low value of any possible recovery for privacy claims brought against an individual, as opposed to an employer.

But the real question is not who will be victorious in the media or in the courtroom.  The real question is whether your organization faces similar risks to the potential espionage of trade secrets and confidential information or to a Jerks-at-Work campaign where a bully secretly accesses a target-coworkers' emails with bad intentions.

What safeguards do you have in place to automatically monitor technology use of company computers?

What policies do you utilize to ensure employees' data is protected with regular password changes and by communicating that an employee who shares her password with another may be subject to serious discipline?

What about the specifics of what an employee may and may not take from the workplace, which includes sending it out of the organization and into the world wide web?  Have you expressly told employees about the consequences of such action?  Do you know what the consequences are?

Take the Mendte-Lane debacle as a cue for you to review your policies, practices, and how those messages are communicated to employees.

 

Michael Klein and John Shiffman at the Philadelphia Inquirer, have more on this story.

 

Prior Related Posts:

More Drama at the News Desk

Employee Embarrasses Employer, Who Fires Employee, Who Sues Employer

What do News Anchors, Sports Figures, and Corporate Executives Have in Common? Employment Agreements and Risk-Avoidance Clauses

Bad Boys, Bad Boys, Whatcha' Gonna Do . . . When They Work for You?

Can I read my employees' e-mails? Labor and employment attorneys get this question often. It's not as common, though, that the possible cyber-sleuth is a co-worker rather than a member of management. Recent drama at the news desk of Philadelphia's CBS 3 fits this unusual profile. 

 

The First of the Fallen Anchors

Long-time CBS news anchor, Larry Mendte, is under federal investigation.  He is suspected of reading the e-mails of former co-anchor, Alycia Lane.  After Lane was involved in several scandals of her own, her employment contract was terminated after she allegedly assaulted a plain-clothes police officer in New York City, and using a homophobic slur. See my earlier post, Bad Boys, Bad Boys, Whatcha’ Gonna Do When They Work for You?, for more details on the Alycia Lane scandal.

The Cyber-Scandal Spreads

And now attention has been turned to Lane's former colleague, Larry Mendte.  Late last week, Mendte and CBS News learned that he was being being investigated for snooping through Lane's e-mail.  Reading others' e-mails without permission or privilege is a federal crime.  (Last week we discussed Delaware's state law, which requires employers to provide written notice of their intent to monitor employees' e-mails.  See Employers' Policies on Technology in the Workplace).

Mendte's home computer was seized by the FBI as part of the probate.  CBS 3 issued the following statement yesterday:

Late last week, CBS 3 became aware of an investigation by the U.S. Attorney's Office regarding anchor Larry Mendte. CBS 3 is cooperating fully with that office in this matter. Mr. Mendte will not be on CBS 3's broadcasts pending further investigation.

While the investigation is ongoing, Mendte has been dethroned. It doesn't seem so positive.  Mendte's lawyer said yesterday, "We hope to work together with CBS 3 to reach a mutually agreeable resolution as to his status." 

That does not sound good.

Get Consent to Monitor Employees' E-Mails or Risk a Mendte-Style Result

Let this be a word of warning to any employer who may be inclined to search their employees' e-mails without complying with state and federal notice requirements.  Cyber-sleuthing has serious consequences.

And if you learn that another employee has been snooping through a co-workers electronic data, including e-mails, act quickly and seriously.  Take a page from CBS 3 and consider suspending the employee until your investigation is complete.

Employers know that e-mail between employees can be dangerous.  Employers know that the Internet can all but eliminate the productivity of their employees.  But what do employers know about Instant Messaging, weblogs, chat rooms, and wikis?  And, more importantly, what are they doing about it? HR Hero's survey gives some insight into the answers to these questions.

Survey Says . . .

HR Hero has released the results an interesting survey on policies (or lack thereof) for workplace technology.  There is a link to the full survey below but here are some highlights:

Policies for Technology Use.  Not surprisingly, most employers (89%) have policies both on employees' internet and e-mail usage.  What was surprising, to me anyway, is that there are still employers (5%) with essentially no policies on workplace technology.

E-mail Usage Policies.  Only a fraction of respondents (3%), did not put any limits on employees' use of the company's e-mail  systems.  Nearly all (80%) have policies expressly prohibiting inappropriate e-mails.  And more than half (61%) permit personal e-mail so long as it is not excessive.  A surprisingly large number (34%), of employers do not permit employees to send any personal e-mails.

Internet Usage Policies.  Like e-mail policies, nearly all employers (82%) prohibit employees from visiting websites.  28% of employers limit employees' internet access to approved websites only.  A small number of employers had either no internet usage policy at all (3%) or put no limitations on usage (3%).

 

Internet & E-Mail Monitoring Policies.  Just over half (58%) of employers that responded monitor internet use but only if they suspect abuse.  Almost the same amount (61%) did the same for e-mail.  Less than one-fifth of respondents regularly monitor e-mail use (19%) but internet monitoring seems to be more common (27%).

 

Blogging.  Most employers have not started to use blogs as part of their business activity.  Of those who have (12%), approximately equal numbers are putting blogs to work as part of their marketing (4%), and public relations (3%), efforts.  Others are blogging to communicate both internally within the company (3%), and externally with clients (1%). 

The entire survey, Technology and HR 2008, can be seen at the HR Hero website.

Special Note for Delaware Employers

Delaware employers should be aware that state law mandates that notice be given before monitoring employees' internet or e-mail usage. The law is specific in the way that notice must be given.  Although there are alternatives, the most common way is with a written consent form signed by each employee.

For more information on how to comply with Delaware's internet and e-mail monitoring law, contact any of the attorneys in YCST's Employment Law Department.

Among Delaware employers and in the world of employment law nationally, there has been much talk about Web 2.0 and the power of social networking tools.  Delaware businesses, like employers across the country, are worried about what is being said about them online.  They should be.

Many of you already know about the impact weblogs and online social networks can have on a business.  Of course, these impacts can be both good and bad. If it were all bad, I wouldn't be blogging on our department's firm-sponsored blog.  Many businesses have begun to embrace these new mediums to reach a broader audience. They've turned to social networking to communicate with a broader audience in an effort to maximize exposure to their products, their message, or their brand.

Other businesses have felt first-hand the negative impact of Web 2.0 communications.  For example, some companies felt massive financial reverberations because a popular blogger posted about his or her negative experience with the company's product or services.  The comments can spread uncontrollably on the web and employers are left without any real recourse. 

Another common scenario involves blogging employees.  With the explosion of the blogosphere, employees have taken to the web to share their personal stories of triumph and tragedy.  Sometimes their stories include not-so-nice commentary about their workplace. The employer is put into a very difficult situation.  If they terminate the blogger, they may be able to at least cut off the blogger's supply of "material" that can be put online.  But termination is not without risk. The terminated employee may respond with more hostile posts than ever before.  And, as newly unemployed, the blogger has plenty of time on his hands to post, and post, and post.

So what to do? We counsel our employment-law clients to institute a blogging policy if they haven't done so already. This is not to say that, as employment lawyers, we advocate for a flat-out ban on employee blogging.  But, at the very least, there should be a policy in place providing that any employee whose blog posts include the company's confidential information or trade secrets, will be subject to discipline, up to and including termination.

A different approach used by some employers could be described as the, "If you can't beat 'em, join 'em policy."  Some companies may go so far as to hire a Chief Blogger In Residence.  The CBR's job is to post like crazy about the positive aspects of the company, its employees, or its products. The Chief Blogger also scans the web to monitor what others are saying and provide an appropriate response. 

Given the cost, CBRs are not exactly commonplace.,  As an alternative, an employer can use online notification tools like Google Alerts, which will search the web for your company's name. When new "hits" are discovered, you recieve an e-mail alert with a link to the site where the company's name was found.  Searching for yourself or your company is known as a "reputation search."

There is now a new product designed to do conduct "professional" reputation searches.  Trackur promotes itself as an "online reputation monitoring and brand tracking tool.  It has been described as "Google Alerts on steroids," according to the Trackur website.  And what makes this pay-for-play, subscription-based tool better than the free Google one?   Having not tried it myself, I'll leave it up to you to decide. 

The plans are not cheap.  A monthly subscription to have just one search saved and run twice daily is $18 per month.  Jump to 5 saved searches and you're up to $88 per month.  I have no experience with Trackur so I can't say what value it actually has.  But even if Trackur isn't met with fabulous success, I'd be willing to wager that similar monitoring tools are not far behind.  Any employer concerned with what its employees are saying about the company, and any business concerned with its online reputation would have good reason to consider an "online reputation-monitoring tool."

***Prior posts on blogging include: Blogs In the Workplace and Somebody's Watching You: New Data on Employers' Electronic Monitoring

Workplace privacy concerns aren't limited to technology.  There's been lots of buzz about GPS tracking of employees, use of biometric data in time and attendance programs, and, of course, electronic monitoring of employees' e-mails, and Internet usage. As the case below demonstrates, privacy concerns don't require hi-tech equipment or software.  Just a whole lot of nosey.

A Sordid Affair

The story centers around a Wal-Mart supervisor who had engaged in an improper affair with a co-worker.  Not only was the affair illicit but it also violated Wal-Mart's anti-fraternization policy.  The supervisor was terminated when the company discovered the relationship.  Now, the termination alone might raise a few eyebrows.  But, policy is policy, and the supervisor's relationship was in violation of policy (as well as really bad managerial skills), the company can and should take disciplinary action. 

I Spy (well, Wal-Mart spied, actually)

Where the story becomes truly noteworthy, though, is exactly how Wal-Mart came to first learn about the "violation."  It hired a private investigator to track the couple.  The investigator did just that; following them all the way to a rendezvous hideaway in Central America.

And Then Came the Lawsuit

The romantic and unemployed supervisor filed suit in Arkansas state court alleging violation of contract and wrongful termination based on public policy.  The contract claim was swiftly rejected.  The termination claim, based on the allegation that he was fired in retaliation for reporting Wal-Mart's failure to comply with it's own internal policies regarding factory certification, was equally unpersuasive.  Summary judgment was granted in favor of Wal-Mart, which was subsequently affirmed by the Arkansas Court of Appeals. 

The legal claims asserted in the lawsuit were pretty blasé when compared with the sordid facts that got him terminated in the first place.  Based on the appellate court's decision, the claims seem doomed from the start.  I have to wonder whether the plaintiff wouldn't have been better off asserting a state-law privacy claim. 

 

The case is Lynn v. Wal-Mart Stores, Inc., No. 07-384 (Ark. App. Ct. Mar. 19, 2008), and a hat tip to the Workplace Profs Blog, who spotted this one back in April.