How Far Is Boss's Reach?
Employees fight back against firings based on their online activities
BY WENDY L. STASELL
When Bill Owens and his wife started a pornographic Web site to
earn extra money, he never thought it would cost him his job as
a salesperson at a home supply store. "I never talked to anyone
at work about it," he said.
Nonetheless, one of his female co-workers found out about the site
and, according to Owens, began sexually harassing him with lewd
comments and unwanted physical contact. Owens complained to his
manager but was told that his Web site had "opened the door"
to the harassment and there was nothing the store could do. He quit
and plans to sue his former employer.
Owens’ case demonstrates how employers are facing increasingly
thorny issues regarding employees’ use of e-mail and the Internet.
Lawrence G. Walters, a partner in the Winter Park, Fla., law firm
Wasserman & Walters, represents Owens, as well as a husband
and wife fired after the hospital they worked for learned they were
operating an adult Web site out of their home. "I get at least
two calls a month from people fired from their jobs because of online
activity," he said.
Courts Back Employers
Firing employees for online activity has typically been upheld.
An at-will employee can be fired for any reason, so long as the
termination does not violate some other law, such as nondiscrimination
or whistleblower statutes. Employees also have very few privacy
rights in the workplace. According to Matthew Finkin, law professor
at the University of Illinois and author of Privacy in Employment
Law, "The attitude is that if you don’t like this
particular employer’s policy, you’re free to find another
employer."
Employers do have legitimate concerns about employees’ online
activity. Continental Airlines, for example, was sued by a pilot
over comments made by co-workers on an Internet forum used by Continental
employees. In Blakey v. Continental Airlines, 164 N.J. 38
(June 1, 2000), the court recognized that if Continental knew about
the comments, it had a duty to stop them even though the forum was
technically outside the workplace.
Employees have tried to raise arguments under the Electronic Communications
Privacy Act of 1986, which prohibits interception of wire, oral
or electronic communications. However, the act allows an employer
to intercept an employee’s e-mail "in the ordinary course
of business," including monitoring the system or ensuring proper
routing of messages. Interception is also lawful with employee consent.
Nor have common-law privacy arguments had much success. In Smyth
v. Pillsbury, 914 F. Supp. 97 (E.D. Pa. 1996), Michael Smyth
filed a wrongful-discharge suit after being fired for sending a
message to a co-worker calling the company sales staff "backstabbing
bastards."
He argued that his discharge violated Pennsylvania’s public-policy
exception to the at-will doctrine, since the employer had invaded
his privacy. Even though the company gave assurances that employee
e-mail would not be intercepted, the court found that Smyth did
not have a reasonable expectation of privacy in an e-mail sent through
the company system.
Lay Down the Law
Michael Overly, special counsel to the Information and Technology
department at Foley & Lardner in Los Angeles and author of E-Policy:
How To Develop Computer, E-Policy, and Internet Guidelines to
Protect Your Company and Its Assets, offers suggestions on creating
a policy regarding employees’ online activity. Make it clear
that online resources are to be used primarily for business purposes;
inform employees that communications transmitted via the company
system will be monitored; detail conduct that is prohibited; and
warn employees that a violation could result in adverse action.
Many companies have begun using monitoring software that detects
inappropriate terms in e-mail. Other programs can block employees’
access to questionable Web sites. There is no prohibition on such
monitoring, although measures have recently been proposed in some
states requiring prior notification to employees. Congress is currently
considering the Notice of Electronic Monitoring Act, which contains
similar provisions.
Advocates such as Lawrence Walters are pushing for even greater
protections. Walters concedes that pornographic Web site cases may
not be the most politically palatable fight. "But it’s
a slippery slope," he said. "If we allow employers to
regulate this type of off-duty activity, what’s next?"
FROM THE DECEMBER 2000 ABA JOURNAL
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