Following Workers Online May Lead to Developing Areas of Law

MIAMI—The Internet seems to be an almost limitless platform for those eager to surprise and shock, including revelations by a new generation of employees with a soft spot for "the fictitious universe where everyone cares about what they think and needs to know right now," remarked Joshua Davis, an attorney with Ogletree Deakins in Boston at the firm's 2009 Workplace Strategies Conference here.

Employers that choose to follow their employees' activities online—where new venues for employees to pose, fume, kvetch, connect and tweet seem to mutate by the hour—might lead into developing areas of the law that could deliver some surprises of their own, particularly in such bellwether states of employment law as California and Massachusetts, Davis and other management attorneys cautioned on May 7.

Strangely, privacy law is becoming one of the main avenues of redress used by employees disciplined or terminated for airing grievances against their employers on online sites such as Jobvent.com that anyone in the general public with Internet access could tap into.

Legal issues are just the tip of the iceberg for Davis, who said that he turns to his children to teach him about the latest online. And he reads with wonder about brave new virtual worlds, like the one where a couple first met in Second Life and tried out marriage virtually first before considering it in that other world we all live in, as Newsweek recently reported.

It isn’t just technology that's changing, but the way we communicate, and the young are leading the way, according to Davis. Those most comfortable with the different avenues of communication opening up to them on the Internet are in the process of transforming "the way we communicate with each other and the world and what that means," Davis said. And he suggested there are few places that reveal generational divides as dramatically as the different generations’ takes on Web 2.0.

'Drunken Pirate'

It’s not just communication that's changing, but the way we learn, which isn't always a good thing. Sharon Margello, an Ogletree Deakins attorney in Morristown, N.J., asked conference attendees to consider a Dec. 3, 2008, decision (Snyder v. Millersville University, C.A. No. 07-1660 (E.D. Pa.)) out of Pennsylvania. A student teacher at Conestoga Valley High School started her career by recommending that her students check out her page on MySpace, which included pictures of her wearing a pirate hat and holding a plastic cup with a caption that read "drunken pirate." The student-teacher encouraged students to visit her page even though student teachers had been cautioned that one student teacher had been dismissed from his program after he had posted information about his school on his personal web page. She testified at trial that the photograph showed her with a “stupid expression on my face … giving the peace sign … expressing myself at the moment, basically peace, love, happiness.”

You can imagine the reaction the parents had when they heard "their little darlings" were being taught by this person, Margello remarked. They complained. The student teacher was dismissed from her teaching program and sued the school. The court sided with the school, concluding that its interests were more important than any First Amendment right the student teacher might have had.

Margello remarked that many times employees in the private sector think mistakenly that they have a constitutional right "to post or say whatever they want." However, Margello noted that some states, such as California, Connecticut, New York and North Dakota, have laws prohibiting employers from disciplining employees for engaging in conduct that is lawful off duty, including lawful drinking.

Moreover, some states are starting to provide employees with a private sector right to free speech, at least in states like Massachusetts, Davis said.

And Douglas Farmer, an Ogletree Deakins attorney in San Francisco, said that a right to free speech in the private sector is emerging in California as well. Farmer added that one interesting development in First Amendment law is the emergence of the right to speak anonymously, which is another legal development employers will need to watch.
What employers really should be concerned about, according to Davis, is whether the things they care about the most
are being disclosed online—things like trade secrets and information about a company's pricing.

Beware of assuming that the information you find on an employee online was posted by that person, he added, noting that someone’s identity can be stolen online and that someone can set up a Facebook page, for example, about someone else and present it as though it is that person's.

A lot of the information you find online is reliable, though, Margello countered, noting that in employment law cases, one of the first things attorneys typically do is google the plaintiff and the plaintiff's counsel and see what they can find, such as web pages that might undermine a harassment plaintiff's claim that certain conduct was not welcome. Margello admitted that one of her guilty pleasures is to make a periodic visit to Above the Law, which dishes about the shenanigans behind the scenes at various law firms.

Davis said even law firms struggle with outrageously inappropriate postings by employees, including an associate at one firm who set up a blog to share excerpts each week from a risqué serialized novel of hers, according to Legal Blog Watch. The lawyer lost her job soon thereafter.

The Never-Ending Path

Following employees online can in some ways be like clicking on link after link while surfing online. "Once you start down a path and are led all the way down and step further in, it’s harder to turn around and leave," Davis said.
Though the area of the law over employers' monitoring of employees' web sites is developing, Davis, for one, suggested such monitoring might not create the kind of electronic trail employers necessarily want to leave behind should they later have to defend themselves from an employment lawsuit.

But just as with employers' concerns about employees' frittering away valuable worktime shopping online, Davis noted that there can be concerns about how much time employees are wasting online at work blogging, microblogging or otherwise becoming virtually engaged, rather than fully engaged in the real world around them. And yet, by the same token, he didn’t dismiss all the new ways of communicating online as derivative or outrageous, acknowledging instead that many employees simply might be tapping into a new, real way of communicating and connecting with others.