APPENDIX

Off-Duty Internet Use: Employers’ Perspectives

John Houston Pope

Epstein Becker & Green, P.C.

New York, NY

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Introduction

“The internet is a unique democratizing medium unlike anything that has come before. The advent of the internet dramatically changed the nature of public discourse by allowing more and diverse people to engage in public debate. Unlike thirty years ago, when many citizens were barred from meaningful participation in public discourse by financial or status inequalities and a relatively small number of powerful speakers could dominate the marketplace of ideas the internet now allows anyone with a phone line to become a town crier with a voice that resonates farther than it could from any soapbox. Through the internet, speakers can bypass the mainstream media to speak directly to an audience larger and more diverse than any the Framers could have imagined.”

-- Doe v. Cahill, 884 A.2d 451, 453-54 (Del. 2005) (internal quotes and alterations omitted)

“[T]he Internet is not something that you just dump something on. It's not a big truck. It's a series of tubes.”

-- Senator Ted Stevens (R-Alaska), June 28, 2006

In the modern workplace the line between on duty and off duty frequently blurs. Many employeesshow up at a company’s offices or worksite, work an eight hour shift, and head home. Other employees work long hours – beyond the traditional eight hour work day – and sometimes switch from performing their employers’ work to performing personal tasks while still at the office, still using company equipment. Still other groups of employees work from home offices, or otherwise telecommute, and may be using their own computers, but their work time and personal time intertwine.

When an employee plainly is working on company time, oris using company equipment, an employer’s right to control the employee’s conduct generates comparatively little controversy.[1] An employee’s activities off duty – off the clock and away from the employer’s premises and equipment – evoke a different response. One popular strain of thought views off-duty time as sacrosanct and argues that employers should not be permitted to discipline or terminate employees for what is said or done outside working hours.

In reality, employers have many interests that can be infringed by employee off-duty conduct. These include an employer’s confidential information, its reputation, and its need to maintain morale and discipline in the workplace. Employers, of course, do not need to institute a totalitarian regime to govern employees outside of the workplace. Much of what happens outside of work matters not. Indeed, for perhaps as long as people have worked for other people, employees have talked about, complained about, and bragged about their work, at home and in every manner of social setting outside of the workplace. The ephemeral conversations rarely mattered precisely because they came and went without a trace.

The internet changed things.[2] The advent of weblogs, better known as blogs, created an entirely new form of interpersonal communication. Millions of people record their thoughts, observations, impressions and opinions on web pages that can be accessed from virtually anywhere in the world. Others choose to use the internet to relate to other people in different ways, through social networking sites (e.g., myspace.com), video and podcast postings (e.g., youtube.com), or virtual worlds where users can assume an identity and engage in a “second life” that parallels (or improves on) their own, albeit with such tweaks and revisions that make them feel better about themselves. Employers face the task of thoughtfully and prudently responding to what their employees elect to do in cyberspace.

Blogging, in particular, is different from the cocktail party patter of an earlier era. A blogger sits down, composes entries, and posts them to a web page precisely so others – often strangers –can read them (and perhaps comment on or discuss them further). Those posts remain in cyberspace, ready to be discovered by wandering eyes that simply may have searched the internet on a topic that located a blog entry due to the presence of key words. In a flash, the fleeting complaints of yesteryear transform into a record that may be accessed by a competitor or government regulator, or read by a co-worker or manager who is the subject of criticism or ridicule, or considered by a recently interviewed candidate who is deciding whether to accept an offer of employment. Of course, many bloggers intend that their comments will be found and read, sometimes in anonymity and sometimes openly, with the purpose of venting their spleen over what they feel their employer does wrong.

Blogs have grown into a significant medium. Millions blog,[3] and the demographic of bloggers skews young[4]; more interaction between blogging and the workforce can be expected as time goes by. With the growth of blogging, employers have responded – sometimes wisely, sometimes not.

“Dooced”

The act of being firing for the contents of one’s blog earned its own name: “dooced”. The online Urban Dictionary defines “dooced” as “getting fired because of something you wrote in your weblog.”[5] The term derives from the name of a blog – Dooce – written by Heather Armstrong.[6] She was terminated from her job as a web designer in 2002 when her employer discovered her blog.

The number of employees dooced has grown over time. One website maintains a listenumerating more than seventy affected employees worldwide.[7] Some illustrative “doocings” in the private sector include:

  • Michael Hanscom, who blogged on Eclecticism, releasedfrom his position as a contract worker at Microsoft in 2003, after he hoped to point out what he considered a “gentle irony” with his post of a photo of the company’s receiving area at the main campus in Redmond, Washington, which showed Apple computers in use.
  • Rob Smith, who blogged on Gut Rumbles, forced into early retirement in 2003 by Kerr-McGee because his blog contained many comments that the company viewed as inconsistent with his position as a manager, including rants against his ex-wife (who also worked for Kerr-McGee at the same facility), a comment that “the n-word was sometimes deserved,” and the statement that “all [he] needed” to deal with workplace violence was “a three-foot piece of stainless pipe” that he kept behind his desk.
  • Ellen Simonetti, who blogged on Queen of the Sky, lost her job as a Delta Air Lines flight attendant in 2004 after she posted what Delta considered overly suggestive photographs of herself in her uniform aboard one of the company’s planes.
  • Mark Jen, who blogged on Ninetyninezeros, fired from Google in 2005, eleven days into his employment, after he posted his comments, based on nonpublic information, on the company’s financial results and future products.
  • Jessica Zenner, who blogged on Inexcusable Behavior, fired from her job as a technical recruiter at Nintendo, after she posted a deeply personal tirade against one of her bosses.

Few dooced employees in America sue. (Several, however, have landed book deals.[8]) Simonetti did, alleging sexual discrimination, but Delta filed for bankruptcy only seven weeks after she commenced her action, bringing it to a sudden halt.[9] At-will employees in this country have little recourse when an employer takes exception to a blog, a topic discussed further below. Contrast the remedies potentially available in other countries. Catherine Sanderson, an English expatriate working in Paris, received €44,000 (roughly $60,000 at the time) in compensation from her employer after being fired (or, as the Brits would say, “sacked”) from her secretarial position in 2006 after her employer learned of her blog, Le Petit Anglais.[10]

Employer Interests & Concerns

Many have the perception that private employer restrictions on blogging raise a free speech issue.[11] The First Amendment, of course, does not apply to private sector employment decisions.[12] Private employers normally are not held to the constitutionally imposed standards that protect free expression from government interference.

Instead, private employers operate within common law and statutory confines. Employees either work under contract (including collective bargaining agreements) or at will. The more common arrangement, at will employment, permits an employer to terminate employment at any time and for any reason or no reason, with the exception that the reason may not be an illegal one, such as unlawful discrimination.[13] At will employment in New York does not recognize any exception for discharges that allegedly violate public policy.[14] Nor does New York recognize the tort of wrongful discharge.[15]

Employee bloggers may, wittingly or unwittingly, infringe a range of important employer interests that should or must prompt a response from their employers. For convenience, these interests will be grouped into three broad categories: protecting an employer’s confidences, protecting an employer’s reputation, and maintaining workplace morale and discipline.

Protecting Confidences

Employers seek to protect many confidences that they consider vital to their business operations: business plans, new product proposals, customer information, financial results, and so on. The list of important confidences often varies among industries and even among employers within an industry. Common to all employers, however, is the need to trust their employees with those confidences during their employment. An employee’s common law duty to loyalty to his or her employer includes the preservation of such confidences.[16]

Employee-bloggers pose a potential threat to the security of such confidences. An employee-blogger easily can let a secret slip and thus launch into the blogosphere information that his or her employer would prefer to keep confidential. An employer certainly can and should take steps to protect these confidences.[17] In two areas the threat of disclosure poses particular hazards.

Information related to financial results, or potentially revealing future changes in those results (such as the progress of a potential new product), may create concerns under the regulatory regime for publicly traded companies. The unauthorized release of information may generate potential liability under the securities laws or force the company to issue an authorized statement prematurely. The strong reaction of a company such as Google to the blogging of its employee, Mark Jen, reflects, for example, this employer concern.

Trade secrets also demand employer vigilance. Deciding when an employer confidence qualifies as a “trade secret” breedsfertile ground for litigation, but one constant in the controversy lies in the need for an employer to demonstrate that it has taken steps to guard the secrecy of the information at issue.[18] Consistent with this crucial factor in trade secret protection, several courts have refused to confer protection on information when it has been released on to the internet.[19] As one court observed:

The court is troubled by the notion that any Internet user, ... can destroy valuable intellectual property rights by posting them over the Internet, especially given the fact that there is little opportunity to screen postings before they are made. Nonetheless, one of the Internet’s virtues, that it gives even the poorest individuals the power to publish to millions of readers, can also be a detriment to the value of intellectual property rights. The anonymous (or judgment proof) defendant can permanently destroy valuable trade secrets, leaving no one to hold liable for the misappropriation.[20]

Employers thus cannot ignore the risk posed by employee-bloggers, should they knowingly or accidentally reveal trade secrets in their postings.

Protecting Reputation

An employee-blogger can post material that the employer finds embarrassing or offensive. Blogger Michael Hanscom attributed his unemployment to this interest; a company does not have to tolerate an individual who announces an “irony” that the company does not wish to publicize. Likewise, the firing of Ellen Simonetti might be seen as a corporate decision to disassociate itself from the manner in which she chose to present herself on-line, particularly in her employer’s uniform. Could the employers have tolerated the approach these employee-bloggers took? Certainly. But they had no obligation to do so.

An employer’s reputational interest extends beyond on-line activity that directly impugns the employer’s business. It is sufficient that an employee-blogger projects a persona with which the business does not want to associate.[21] A federal court case in New Jersey, Wiegand v. Motiva Enterprise, LLC,[22] illustrates this point vividly. An employee who managed the convenience store at a gasoline station also operated a website marketing “quality Pro-White products” and otherwise vigorously advocating a neo-Nazi point of view. When the employer learned that a newspaper article had been published linking the employee to the website (but not yet linking the employee to the employer), it fired him, despite his assertion that he did not himself subscribe to the views set forth on his website. The court observed:

Plaintiff was a supervisor of the convenience store and was in constant contact with the consuming public. Defendants justifiably were concerned that if they allowed his employment to continue, the public would learn of the views expressed on his website and believe that defendants condoned such ideas. While the hate materials was not associated with defendants’ brand at the time of plaintiff’s termination, defendants, as private employers, still had a very strong interest in regulating the speech of their convenience store supervisor to ensure that it personified their values of respect for all.[23]

As acautionary tale, it should be noted that, despite this strong pro-employer statement, the employer did not obtain summary judgment on all claims. The employee successfully argued that a claim based on promissory estoppel should proceed to trial because, he contended, the employer initially had “promised” to continue his employment if he took steps to disassociate himself from the website business and to prevent further publicity.[24] This result underscores the importance to an employer of focusing on its interests early and hewing to a course that best advances them.

Employer reputational interests also can be implicated by the use of its trademarks, or similar other intellectual property, on an employee-blogger’s site. The uncontrolled use of trademarks can create issues for future enforcement, including diminishment of claims for blurring or tarnishment of the mark by others. An employer should actively police the unauthorized use of its marks by bloggers, as it previously would do when others misappropriate such intellectual property.

Maintaining Morale and Discipline

The first two groups of interests address how the employer deals with the outside world; morale and discipline, however, must be maintained within an employer’s workplace. These interests can be threatened by employee-bloggers who use their forum to challenge the authority, competence or personal qualities of their managers, or who engage in expression that cannot be reconciled with their responsibilities within the organization. Jessica Zenner’s termination for her tirade against her boss fits the first category; the postings by Rob Smith that were inconsistent with his managerial role fall into the second. Both employee-bloggers ignored the potential impact of their postings on their future interactions in the workplace.

A recent public employment case, Curran v. Cousins,[25]drives home this point. The plaintiff, a corrections officer, posted extraordinarily inflammatory statements about his boss – the Sheriff – to a public discussion board website. The court upheld the termination of the plaintiff’s employment, noting that “[t]he statements here directly went to impairing discipline by superiors, disrupting harmony and creating friction in working relationships, undermining confidence in the administration, invoking oppositional personal loyalties, and interfering with the regular operation of the enterprise.”[26] These interests are hardly unique to public employers or to law enforcement agencies. Every employer can and should concern itself with internet postings that attack the cohesion of the workplace.[27]

These interests also coincide with an employer’s interest in maintaining a workplace free of discriminatory insult or ridicule. An employee-blogger, operating off duty, could use an internet forum to directly attack or disparage other employees in terms that would constitute illegal harassment if they occurred in the workplace.[28] While those attacks should be insufficient by themselves to create employer liability, they certainly help to define a context for judging workplace behavior and, if called to an employer’s attention, could provide an argument for the affected co-workers that the employer ignored or condoned allegedly harassing behavior.[29] Additionally, a managerial employee-blogger may reveal aspects of his or her attitudes or character that later could be used as evidence of illegal animus should that manager render an employment decision that is challenged as discriminatory or retaliatory. Employers accordingly should be concerned when employee-bloggers speak directly about their colleagues and managers or about subjects that may reveal unlawful prejudices or intolerance.