Too Much Information?

Others sites simply provide places where people can post their musings ' including their thoughts about work and the companies that employ them.
In some ways, these communication channels are replacing more traditional mechanisms (teenagers “talk” to each other through Facebook and other such pages), and in others, they have spawned new vocabulary (“poking,” “friending,” and so forth), as well as a wealth of data, which is available to anyone who wants to see it. The information shared on these sites is sometimes highly personal. MySpace and Facebook sometimes include posts about sexual experiences. Such postings can certainly shape an employer's view of its employee or applicant.

Like e-mail, Internet postings tend to be informal, overly familiar and carelessly constructed. Because they are computer-based, like e-mail, they last forever. Such postings can have dramatic, real-world consequences. Cisco Systems faces litigation because an in-house lawyer blogged anonymously, suggesting misconduct by plaintiffs' lawyers suing Cisco. Two employees at a financial services firm lost their jobs because they posted negative comments about their CEO on an internal company-sponsored blog. A woman was not hired because her Facebook page announced her affection for beer. A plaintiff in a case alleging sex harassment found her MySpace page at the center of the case because she celebrated receiving precisely the kind of attention that is the basis for her suit. In each of these cases, postings that the poster may have considered private were found by the employer and consequences resulted. Some of this is so predictable that college placement officers now caution students to be careful about the content of their Facebook and MySpace profiles.

Litigation

Some of it is not predictable. In the Cisco case, an in-house counsel used the Internet to assault the integrity of the lawyers suing his employer. Albritton v. Cisco Systems, Inc., No. 08-cv-00089-RAS (E.D. Tex.). In a case involving Hawaiian Airlines, an executive used an employee's personal information to log in to a private Web site. Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002). In litigation involving Delta Air Lines, a flight attendant who included on her blog photographs of herself in uniform and on a plane, but who did not identify Delta as her employer, was nonetheless fired by Delta because it deemed the photos “inappropriate.” Simonetti v. Delta Air Lines, Inc., No. 05-cv-02321-JEC (N.D. GA). In other cases, persons have created Web-based data (a Facebook profile or the like) as if they were someone else. The Internet does not know what is true and accurate, and employers rely on what they find (but fail to verify) at their peril.

Part of what makes this virtual universe such complex territory is that people operate within it as if they expect it to be private even when they must know it is not. The content of the information posted reflects a sense of security, while the reality of the search engines and the actual operation of the Web itself demonstrate that there is no reason for anyone to believe that his or her “private” postings are secure.

Employers, Beware!

Employers who choose to use the Internet to learn about employees or applicants immediately subject their activities to the state and federal laws that prohibit discrimination. Some of the information available on the Internet falls squarely within the types of information that employers are well advised to avoid learning. For example, Facebook pages may contain birthdates. Pictures on the Internet may reveal or seem to suggest an individual's race or national origin. Membership or affiliation with particular groups ' religious organizations or support groups, for example ' may also suggest an applicant's membership in a protected classification. In short, the employer trolling for information on the Internet runs the risk of learning about an individual's membership in a protected class, which the employer might not otherwise have known, and then faces discrimination-based scrutiny of any adverse employment decision.

The laws implicated here are familiar. Title VII's prohibition against discrimination is squarely implicated by an employer's knowledge of either an employee's or an applicant's membership in a protected classification. An employer who decides not to hire an individual without knowing his or her age does not run the risk of liability on the basis of age discrimination.

In contrast, an employer who makes a hiring decision after reviewing a Facebook profile that reveals the age of the employee may face the prospect of an age claim. The same is true if an employer learns of an applicant's membership in some other protected classification.

Perhaps more problematic is the possibility that information available on the Internet will suggest, without establishing, membership in a protected classification. A Facebook profile stating that an individual is a member of a support group might lead the employer to conclude that the individual has a mental disease or impairment. That impression, mistaken or not, immediately brings the Americans with Disabilities Act (“ADA”) into play, even if the job applicant gave no indication of any conceivable condition that may implicate the ADA.

Other Scenarios

There are other possible scenarios in which employment laws are implicated. The ADA treats alcoholism as protected, and it protects recovering or former drug addicts. Web sites might convey the sense that an individual applicant or employee is a “partier.” Much of the information or articles on the Internet is information that an employer would otherwise not wish to gather about its employees' private conduct. Nevertheless, once in possession of such information, the employer is liable for the possibility that it acted on it. In short, too much Internet research seems a likely source of employment law claims, or at least a basis into which one can readily expect plaintiffs to inquire as they look for evidence of an employer's discriminatory intent.

Another source of employment litigation related to information gleaned from the Internet is sex harassment claims. In addition to membership in support groups, and information about individuals, information concerning a person's proclivities (relationship status/interest in “partying”/experiences from last night/desires/fantasies) abounds in cyberspace. Internet profiles frequently contain photos, some of which are compromising. It is not just what employees post that might matter; it is what other employees might do after finding it. For example, an employee might post a revealing cell phone photo on his or her Facebook page. Then, another employee might see that photo and copy it from the Internet and attach it to an e-mail. That e-mail could then make its way throughout the employer's place of business and itself become the basis for a claim of sex harassment.

The speed of electronic communication and the relative lack of filter shown by individuals in their virtual interactions and use of social networking sites creates the opportunity for the spread of information that would have once been considered deeply private and highly embarrassing. That spread of such information can change the way employees and supervisors view certain employers. In so doing, it brings into focus or raises the possibility of a claim for sex harassment. It also raises the following question: To what extent does an employee's decision to post highly personal information about him- or herself on the Internet establish a basis for a “welcomeness defense” to a claim of sex harassment?

Standards for Employers

The cases referred to, and scenarios posited above, suggest certain standards to which employers should adhere. First, employers should be careful not to gather information about applicants or employees from the Internet in a manner that could be held to be discriminatory. For example, employers should not conduct Internet searches involving only African-American or female applicants. Employers should establish and follow a standard protocol if they decide to conduct such research. Second, employers should be careful not to gather the type of information that could support a discrimination claim. For example, an employer may wish to avoid Web sites likely to reveal birthdates or self-reported affiliation groups. In short, employers should carefully consider whether to pursue the volume of information seemingly available through Web-based images. Finally, employers should enforce their own e-mail use policies in their workplaces and may want to block access to adult or other inappropriate Web sites on company computers to safeguard against the electronic distribution of information that could provide the basis for a discrimination claim.

Privacy

Many employers have established policies designed to defeat any expectation of privacy an employee might claim in electronic files maintained on his or her work computer. Specifically, employers often have electronic use policies that allow them to access e-mail and other communications, and they publish and distribute these policies so that employees know their communications are not private. In contrast, employees often expect that what they do on their home computer is private. Employers and employees should consider whether employees properly have a reasonable expectation of privacy in information that they post on a social networking site, or more generally, on the Internet. In other words, if an employee posts something on Facebook, or posts negative comments about his or her job on a blog, should he or she anticipate that an employer will see it?

Internet sites often have access rules that users contract to honor by clicking “I Accept” as they make their way into a site. These rules may provide a basis for an employee's expectation of privacy. The legal question is whether any such expectation of privacy is reasonable. An employer who acts in a manner inconsistent with the terms to obtain information runs the risk of a claim based on privacy under state law.

Tort Law

Many states recognize tort claims for terminations that violate public policy. Employees who blog about their political views or publicly take issue with their employer may raise claims along these lines. Similarly, employees and employers alike may see an increase in defamation claims based on false light privacy as a consequence of the ease of publication of speech enabled by the Internet.

Trade Secrets

An employer who seeks to protect trade secrets through litigation or otherwise must establish that it takes steps to protect from disclosure the information it deems to be a trade secret or proprietary. The Internet, with the ease of publication it enables, makes extra employer precautions necessary. If an employee elects to post on the Web some of the information the employer considers proprietary or a trade secret, but the employer is unaware of the posting because it takes no steps to monitor the Web, its secrets could be in the public domain. If another employee (or even the same employee) subsequently resigns to work for another company, and the initial employer brings an action designed to protect the trade secrets against disclosure, the employee may respond by saying the trade secret or proprietary information is in the public domain because it was posted on the Internet for months. This would be potentially problematic for the employer, because even though it made internal efforts, by contract and otherwise, to protect against disclosure of its proprietary information, the information was in fact disclosed in a way that the employer did not detect or act to stop.

To combat this particular problem, employers should contract against electronic disclosure and should be able to demonstrate that they periodically conduct searches and make other efforts to investigate the Internet to determine whether their confidential information is safe. Because the governing test is what steps the employer takes to protect the information, reasonable monitoring and enforcement measures, rather than the ultimate efficacy of the enforcement, should determine whether trade secret protection exists or not.

Conclusion

Human behavior, coupled with the ubiquity of access to the Internet, necessarily means that more employers will face claims based on allegations related to electronic data collection and dissemination. These claims will likely proliferate as a consequence of the relative carelessness with which information is launched into cyberspace. Prudent employment practices must include limitations on electronic access and on the transmission of information obtained electronically. Employers also need to be prudent about monitoring the degree to which their own confidential or proprietary information is making its way through cyberspace. The world in which we currently live is much different from that of just a generation ago, and those differences will likely form the grist of employment claims for some years to come.

Josh Davis and Neil McKittrick, a member of this newsletter's Board of Editors, are Shareholders in the Boston office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Many employers now regularly “Google” employees and job applicants; employees and applicants Google employers and potential employers in return. In so doing, they uncover all sorts of information about each other. An employer may find a Facebook page, a MySpace profile, a blog or blog entry, or (even) information about someone on someone else's Web pages or blog postings. An employee may find a blog describing an employer's workplace or other information about its business or practices. A competitor may use Google or Yahoo! to monitor the competition and, in so doing, discover information posted by an employee or former employee that the employer believes is a trade secret. There is considerable information available in cyberspace ' much of it interesting, some of it damning, and some of it false. Obtaining that information feels risk free and virtually untraceable. However, the universe of employment laws applies to much of what happens when virtual sleuthing yields tangible job consequences.

Perils of the Internet

The Internet has its own vocabulary. Google and Yahoo! are search engines. Facebook, MySpace, Classmates.com, and Match.com are social networking sites, where people connect with one another and where they can post descriptions of themselves or look for personal relationships. Blogs are postings of opinion in a manner that invites response and commentary. Some sites actively encourage blogging about employment ' JobVent.com describes itself as follows: ” ' the Web site for anyone who has ever said, 'I hate my job,' or 'I love my job.' JobVent is the Web site for people who are about to start a new job, and want to see what other people think of working there.”

Others sites simply provide places where people can post their musings ' including their thoughts about work and the companies that employ them.
In some ways, these communication channels are replacing more traditional mechanisms (teenagers “talk” to each other through Facebook and other such pages), and in others, they have spawned new vocabulary (“poking,” “friending,” and so forth), as well as a wealth of data, which is available to anyone who wants to see it. The information shared on these sites is sometimes highly personal. MySpace and Facebook sometimes include posts about sexual experiences. Such postings can certainly shape an employer's view of its employee or applicant.

Like e-mail, Internet postings tend to be informal, overly familiar and carelessly constructed. Because they are computer-based, like e-mail, they last forever. Such postings can have dramatic, real-world consequences. Cisco Systems faces litigation because an in-house lawyer blogged anonymously, suggesting misconduct by plaintiffs' lawyers suing Cisco. Two employees at a financial services firm lost their jobs because they posted negative comments about their CEO on an internal company-sponsored blog. A woman was not hired because her Facebook page announced her affection for beer. A plaintiff in a case alleging sex harassment found her MySpace page at the center of the case because she celebrated receiving precisely the kind of attention that is the basis for her suit. In each of these cases, postings that the poster may have considered private were found by the employer and consequences resulted. Some of this is so predictable that college placement officers now caution students to be careful about the content of their Facebook and MySpace profiles.

Litigation

Some of it is not predictable. In the Cisco case, an in-house counsel used the Internet to assault the integrity of the lawyers suing his employer. Albritton v. Cisco Systems, Inc., No. 08-cv-00089-RAS (E.D. Tex.). In a case involving Hawaiian Airlines, an executive used an employee's personal information to log in to a private Web site. Konop v. Hawaiian Airlines, Inc. , 302 F.3d 868 (9th Cir. 2002). In litigation involving Delta Air Lines, a flight attendant who included on her blog photographs of herself in uniform and on a plane, but who did not identify Delta as her employer, was nonetheless fired by Delta because it deemed the photos “inappropriate.” Simonetti v. Delta Air Lines, Inc., No. 05-cv-02321-JEC (N.D. GA). In other cases, persons have created Web-based data (a Facebook profile or the like) as if they were someone else. The Internet does not know what is true and accurate, and employers rely on what they find (but fail to verify) at their peril.

Part of what makes this virtual universe such complex territory is that people operate within it as if they expect it to be private even when they must know it is not. The content of the information posted reflects a sense of security, while the reality of the search engines and the actual operation of the Web itself demonstrate that there is no reason for anyone to believe that his or her “private” postings are secure.

Employers, Beware!

Employers who choose to use the Internet to learn about employees or applicants immediately subject their activities to the state and federal laws that prohibit discrimination. Some of the information available on the Internet falls squarely within the types of information that employers are well advised to avoid learning. For example, Facebook pages may contain birthdates. Pictures on the Internet may reveal or seem to suggest an individual's race or national origin. Membership or affiliation with particular groups ' religious organizations or support groups, for example ' may also suggest an applicant's membership in a protected classification. In short, the employer trolling for information on the Internet runs the risk of learning about an individual's membership in a protected class, which the employer might not otherwise have known, and then faces discrimination-based scrutiny of any adverse employment decision.

The laws implicated here are familiar. Title VII's prohibition against discrimination is squarely implicated by an employer's knowledge of either an employee's or an applicant's membership in a protected classification. An employer who decides not to hire an individual without knowing his or her age does not run the risk of liability on the basis of age discrimination.

In contrast, an employer who makes a hiring decision after reviewing a Facebook profile that reveals the age of the employee may face the prospect of an age claim. The same is true if an employer learns of an applicant's membership in some other protected classification.

Perhaps more problematic is the possibility that information available on the Internet will suggest, without establishing, membership in a protected classification. A Facebook profile stating that an individual is a member of a support group might lead the employer to conclude that the individual has a mental disease or impairment. That impression, mistaken or not, immediately brings the Americans with Disabilities Act (“ADA”) into play, even if the job applicant gave no indication of any conceivable condition that may implicate the ADA.

Other Scenarios

There are other possible scenarios in which employment laws are implicated. The ADA treats alcoholism as protected, and it protects recovering or former drug addicts. Web sites might convey the sense that an individual applicant or employee is a “partier.” Much of the information or articles on the Internet is information that an employer would otherwise not wish to gather about its employees' private conduct. Nevertheless, once in possession of such information, the employer is liable for the possibility that it acted on it. In short, too much Internet research seems a likely source of employment law claims, or at least a basis into which one can readily expect plaintiffs to inquire as they look for evidence of an employer's discriminatory intent.

Another source of employment litigation related to information gleaned from the Internet is sex harassment claims. In addition to membership in support groups, and information about individuals, information concerning a person's proclivities (relationship status/interest in “partying”/experiences from last night/desires/fantasies) abounds in cyberspace. Internet profiles frequently contain photos, some of which are compromising. It is not just what employees post that might matter; it is what other employees might do after finding it. For example, an employee might post a revealing cell phone photo on his or her Facebook page. Then, another employee might see that photo and copy it from the Internet and attach it to an e-mail. That e-mail could then make its way throughout the employer's place of business and itself become the basis for a claim of sex harassment.

The speed of electronic communication and the relative lack of filter shown by individuals in their virtual interactions and use of social networking sites creates the opportunity for the spread of information that would have once been considered deeply private and highly embarrassing. That spread of such information can change the way employees and supervisors view certain employers. In so doing, it brings into focus or raises the possibility of a claim for sex harassment. It also raises the following question: To what extent does an employee's decision to post highly personal information about him- or herself on the Internet establish a basis for a “welcomeness defense” to a claim of sex harassment?

Standards for Employers

The cases referred to, and scenarios posited above, suggest certain standards to which employers should adhere. First, employers should be careful not to gather information about applicants or employees from the Internet in a manner that could be held to be discriminatory. For example, employers should not conduct Internet searches involving only African-American or female applicants. Employers should establish and follow a standard protocol if they decide to conduct such research. Second, employers should be careful not to gather the type of information that could support a discrimination claim. For example, an employer may wish to avoid Web sites likely to reveal birthdates or self-reported affiliation groups. In short, employers should carefully consider whether to pursue the volume of information seemingly available through Web-based images. Finally, employers should enforce their own e-mail use policies in their workplaces and may want to block access to adult or other inappropriate Web sites on company computers to safeguard against the electronic distribution of information that could provide the basis for a discrimination claim.

Privacy

Many employers have established policies designed to defeat any expectation of privacy an employee might claim in electronic files maintained on his or her work computer. Specifically, employers often have electronic use policies that allow them to access e-mail and other communications, and they publish and distribute these policies so that employees know their communications are not private. In contrast, employees often expect that what they do on their home computer is private. Employers and employees should consider whether employees properly have a reasonable expectation of privacy in information that they post on a social networking site, or more generally, on the Internet. In other words, if an employee posts something on Facebook, or posts negative comments about his or her job on a blog, should he or she anticipate that an employer will see it?

Internet sites often have access rules that users contract to honor by clicking “I Accept” as they make their way into a site. These rules may provide a basis for an employee's expectation of privacy. The legal question is whether any such expectation of privacy is reasonable. An employer who acts in a manner inconsistent with the terms to obtain information runs the risk of a claim based on privacy under state law.

Tort Law

Many states recognize tort claims for terminations that violate public policy. Employees who blog about their political views or publicly take issue with their employer may raise claims along these lines. Similarly, employees and employers alike may see an increase in defamation claims based on false light privacy as a consequence of the ease of publication of speech enabled by the Internet.

Trade Secrets

An employer who seeks to protect trade secrets through litigation or otherwise must establish that it takes steps to protect from disclosure the information it deems to be a trade secret or proprietary. The Internet, with the ease of publication it enables, makes extra employer precautions necessary. If an employee elects to post on the Web some of the information the employer considers proprietary or a trade secret, but the employer is unaware of the posting because it takes no steps to monitor the Web, its secrets could be in the public domain. If another employee (or even the same employee) subsequently resigns to work for another company, and the initial employer brings an action designed to protect the trade secrets against disclosure, the employee may respond by saying the trade secret or proprietary information is in the public domain because it was posted on the Internet for months. This would be potentially problematic for the employer, because even though it made internal efforts, by contract and otherwise, to protect against disclosure of its proprietary information, the information was in fact disclosed in a way that the employer did not detect or act to stop.

To combat this particular problem, employers should contract against electronic disclosure and should be able to demonstrate that they periodically conduct searches and make other efforts to investigate the Internet to determine whether their confidential information is safe. Because the governing test is what steps the employer takes to protect the information, reasonable monitoring and enforcement measures, rather than the ultimate efficacy of the enforcement, should determine whether trade secret protection exists or not.

Conclusion

Human behavior, coupled with the ubiquity of access to the Internet, necessarily means that more employers will face claims based on allegations related to electronic data collection and dissemination. These claims will likely proliferate as a consequence of the relative carelessness with which information is launched into cyberspace. Prudent employment practices must include limitations on electronic access and on the transmission of information obtained electronically. Employers also need to be prudent about monitoring the degree to which their own confidential or proprietary information is making its way through cyberspace. The world in which we currently live is much different from that of just a generation ago, and those differences will likely form the grist of employment claims for some years to come.

Josh Davis and Neil McKittrick, a member of this newsletter's Board of Editors, are Shareholders in the Boston office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.