Archive for the ‘Social Networking’ Category

As I have preached on many occasion on this blog, be careful of what you do online that your employer may become aware of since it may haunt you in your job at a later time. Even where, as in the sex bloggers case, you try to keep your online activities anonymous, sometimes it does not always work out that way.

A 37-year-old blogger and mom The Beautiful Kind (“TBK”) was happily employed doing part-time office work for a nonprofit organization, and hoped she would soon go full-time. Instead, a “Twitter glitch” led her boss to her blog, which included a sex-advice column, porn reviews, and descriptions of TBK’s own sex life (she’s since taken down most of the content). However an April 23 post, was still available in cached form:

Here’s what’s coming up! 1. This week I’m having my first colonic, as well as my first pussy modeling session (but not at the same time) 2. Next week I’ll be sharing one of the hottest moments of my life. It will come at you in three smokin’ parts.

TBK claims she had originally signed up for a Twitter account under her real name, then quickly changed it when she saw it showed up on her profile. However, Twitter apparently saved the name, and “third party social media search engines such as Topsy crawled and found this glitch and spread it around the internet.” The result: when her boss Googled her last week, he found her blog, although the blog itself never listed her name. The employer’s search resulted in a termination letter as follows:

We simply cannot risk any possible link between our mission and the sort of photos and material that you openly share with the online public. While I know you are a good worker and an intelligent person, I hope you try to understand that our employees are held to a different standard. When it comes to private matters, such as one’s sexual explorations and preferences, our employees must keep their affairs private.

While the employer claims that her termination was due to business concerns, the sex blogger claims that she did her job well and kept her private life private. So was this just an employer trying to impose its personal beliefs on its employees? Of course, this would not be the first time such a thing has happened. Why didn’t the employer just ask her to take down the blog? Would this have not assuaged the employer’s concerns? Seems like more laws need to be passed to keep employers out of the private lives of their employees, so long as their out of office activities don’t affect their work or performance, its none of their business what they do in their personal time. What do you all think?

Share

I have previously posted on the topic of employees getting into trouble for things they post on their Facebook, LinkedIn and other social networking sites.  In some cases they have been sued or fired based upon whats on their site.  Seems to me though there is a very simple solution to this problem, make your settings private on your Facebook and other sites and don’t invite your boss to be your friend if you are gonna say bad things about him/her or your job.

By  keeping your information on these sites private, if the employer accesses this information in a underhanded fashion or though a co-worker, the employer is violating in most cases state privacy laws as well as the Federal Stored Communications Act, which prohibits employers from accessing, without the employee’s consent, an employee’s secure website bulletin board or private chat room to search for posts critical of the employer, union or customers.  The Stored Communications Act, 18 U.S.C. § 2701 et seq., (the “SCA”) regulates when an electronic communication service (“ECS”) provider may release the contents of or other information about a customer’s emails and other electronic communications to private parties. Congress passed the SCA to prohibit a provider of an electronic communication service “from knowingly divulging the contents of any communication while in electronic storage by that service to any person other then the addressee or intended recipient.”

Under 18 U.S.C. § 2701 , an offense is committed by anyone who: “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided;” or “(2) intentionally exceeds an authorization to access that facility; and thereby obtains…[an] electronic communication while it is in electronic storage in such system.” 18 U.S.C. § 2701(a)(1)-(2). However, it does not apply to an “electronic communication [that] is readily accessible to the general public.” 18 U.S.C. § 2511(2)(g).

Court have generally held Facebook, MySpace and other social networking sites to be subject to the SCA where the user has designated their information as private.  So keep your information private, don’t invite your employer to review the information and at least your back will be covered in the event your employer surreptitiously gains access to the information.  One exception would be if you consented to your employer’s access to such information so be on the look out for your employer trying to get you to sign a document that would allow it to access your private online information.

If your employer improperly accesses your private information, consult with an attorney about your possible options.

Share

In my representation of employees in employment cases, there is already an increase in use of information from social networking sites.  Yes, that is correct, if you sue your current or former employer, they could try to serve a subpoena on facebook, myspace, etc to obtain information relevant to your lawsuit.  While any good litigation attorney would object that this type of discovery violates privacy concerns, there are some judges who would allow this type of information to be obtained.  For instance in a sexual harassment case, maybe the employer is arguing that you had a consensual relationship with the employee or supervisor and maybe your facebook account supports that argument.

Now it appears that an online Communications services company called Teneros has created a software product known as Social Sentry that can automatically monitor the Facebook and Twitter accounts of employees. The cost to the employer would run between $2 and $8 for each employee, with the precise cost being dictated by factors such as the parameters of the social networking to be monitored and the company size.

While prior to advent of Social Sentry employers were capable of doing some social networking monitoring, the value of that monitoring could be outweighed by the sheer enormous volume of social networking data available on the Internet. Social Sentry supposedly will automate the process for employers and make it easier to pinpoint the type of activity for which they have an interest.

While it would still have to be determined whether the employers are within their rights to obtain some of this information, the word of caution is watch what you post….it could come back to haunt you.

Share
Search
Categories
Links: