By Leslie Zieren, Esq.
Consultant to this Program
When employees post negative information about your organization on publicly accessible Internet sites, organizations are challenged as to how to maintain their reputations, counter the negative information, and not run afoul of the law. A recent jury verdict against an employer from a federal district court in New Jersey illustrates this problem.
Brian Pietrylo worked for Hillstone Restaurant Group d/b/a Houston’s, a restaurant chain. On a popular social networking site, Pietrylo created a group called the “Spec-Tator.” In his first posting, he created the purpose of the group as to “vent about any BS we deal with [at] work without any outside eyes spying in on us. This group is entirely private, and can only be joined by invitation.” Pietrylo then invited the participants to “[l]et the s**t talking begin.” Several co-workers participated, including Doreen Marino.
As participation grew, there were sexual remarks made about Houston’s management and customers, jokes about the corporation’s standards for customer service, and comments about violence and illegal drug use.
Somehow, Robert Anton, a Houston’s manager, asked one of the employee participants, Ms. St. Jean, to provide the Spec-Tator password, which she did, because she thought she would get into trouble if she did not.
Pietrylo characterized his remarks as “just joking,” but management testified they found the remarks to be “offensive.” Pietrylo and Marino were terminated.
Pietrylo and Marino sued their employer for wrongful termination, violation of the federal Stored Communications Act, invasion of privacy, and other claims. The Stored Communications Act makes it an offense to intentionally access stored communications without an authorization or in excess of authorization, unless the conduct was authorized by a user of the service regarding a communication intended for that user. Because there was an issue of fact as to whether the employer obtained access to the password from St. Jean by putting her under duress, that claim and an invasion of privacy claim went to the jury for consideration.
The jury found against Houston’s on the Stored Communications Act claim and the invasion of privacy claim. Each plaintiff was awarded maximum back pay and punitive damages. Under the Stored Communications Act, the prevailing party is entitled to recover attorney fees.
Bottom Line:
To avoid liability, employers should be careful how they access or attempt to access an employee’s restricted web content. The case turned on how the jury viewed St. Jean’s state of mind and whether she was under duress or freely sharing the password when asked for it by Anton. That would not be an unusual result.
When employees are asked by management for anything, there is a common and well-based assumption that the request comes with an element of pressure or expectation, intended or not—just what the jury probably thought. It is difficult to imagine steps an employer could take that would eliminate this hierarchical reality.
Consider another approach instead. Check out online reputation management tools. Consult with an expert. Make a response plan that includes thinking through whether a response is necessary and if so, what kind of response is warranted.
