Thursday, June 10, 2010

Social Media Creates New Issues for Employment Attorneys

Labor and employment attorneys are blazing new trails when considering the affect that social media is having on the workplace. Both employees and employers are wondering whether posts on sites such as Facebook, Twitter, and Myspace can result in someone getting fired. Employers are wondering whether they may review these sites when an employee’s posts could raise questions of loyalty. Employees, on the other hand, wonder whether they have a right to privacy in their posts.

An example of such case involved a woman who was formerly employed as a server at a pizza restaurant. She waited on a party for approximately 3 hours. After they left, she was not happy with the five dollar tip. She then went home and complained to her friends on her Facebook page. Management at the restaurant found out about her Facebook rants and they fired her.

Does she have a case? It depends on the jurisdiction. These facts or very similar facts have arisen many times throughout the country. If this woman were in New Jersey, there are probably a number of attorneys who are willing to take her case.

In New Jersey, a group of employees, also with a restaurant, set up a Myspace page for the specific purpose of complaining about their employer during their off duty time. See Pietrylo v. Hillstone Rest. Group, (D. N.J.Sep. 25, 2009). To enter the Myspace page, each participant required a password. Management approached one of the employees about the site and that employee provided management with a username and password. Management logged onto the site several times and eventually terminated the employees who created the site for damaging morale.

The New Jersey District Court held a jury trial to determine whether the employees 1) violated the federal or state Stored Communications Act; 2) invaded the employee’s right to privacy; and/or 3) wrongfully terminated the employees in violation of public policy. The jury returned a verdict in favor of the employees awarding compensatory and punitive damages. The Court rejected the employer’s request to overturn the jury verdict.

This case reveals that employers must proceed with caution before deciding to review an employee’s Facebook, Twitter, or Myspace page. Absent an express invitation from the employee, the employer should not access an employee’s page.

Still, each case is different and a court’s ruling in New Jersey is not binding on other jurisdictions. This is an area of the law that is constantly evolving. Specific concerns regarding these issues should be discussed with a labor and employment attorney. I can be reached at (813) 413-2402.