Tweet, Tweet, Youre Fired

Summer 2009 Employment & Labor Relations Law

Tweet, Tweet, You’re Fired
By Patty A. Wise

“
Comments Heard In, Around, and and collaborative advances, however, this platform.4 Twitter utilizes peer-to-peer
Consequent to the Company Christmas may lead to increased potential liability rather than broadcast communication.
Party Last Evening” for employers. Legal risks include pos- By using simple message service (SMS)
“The Proper Way to Hate a Job” sible claims of libel and defamation, trade protocol, a user can send updates of up to
“Reasons the Asian Database Adminis- disparagement, copyright infringement, 140 characters to members of peer groups.5
trator is so F#&*ing Annoying” harassment, discrimination, retaliation, Arguably, the peer-to-peer method would
disclosure of proprietary information, and make these messages (known as “tweets”
These blog entries and others led to the damage to an employer’s goodwill. The on the Twitter service) more similar to
termination of graphic designer Heather number of lawsuits filed against bloggers private email and voicemail messages; if
Armstrong, for violating her company’s has increased exponentially in recent such messages are not transmitted on an
zero-tolerance policy for “negativity” in years. Bloggers may even take out an employer’s system, they are not generally
her anonymous blogging on dooce.com. insurance policy—called BlogInsure— thought to be of concern to employers.
Her discharge was the genesis of the term to guard against potential liability.1
“dooced,” referring to termination for Employers must balance the risk of
inappropriate online communications
related to employment.
liability for an employee’s online conduct
with the employee’s privacy. Lawyers
The number
should advise employers to draft policies of lawsuits
“Save us White Boy!” that address the online conduct of em-
“What I wouldn’t give to draw a little ployees. Such precautions are even more filed against
Hitler mustache on the chief negotiator.” important if the employer maintains its
own blog or Internet forum, or encourages bloggers
These blog entries caused another its employees to engage in online social
employee’s reassignment and a subse- networking. And as with all policies, uni- has increased
quent lawsuit. The employee claimed form enforcement is critical. This article
that the employer’s reassigning of her outlines some of the legal issues presented exponentially
was retaliation for protected First
Amendment activity. And “gripe sites,”
by blogging and online social networking
activities, and suggests policies to mini- in recent years.
such as the former f---edcompany.com mize the risk of liability.
even encourage employees to complain However, the micro-blog platform, which
about workplaces. The Current Landscape of Blogs facilitates rapid texting via cell phones,
Employers are increasingly using blogs and Online Social Networks results in near-instant public dissemina-
and other online social networking tools An online social network is an Internet tion. The news of the Hudson River
to further public relations, marketing, community of people who construct bio- plane landing and the recent earthquake
and recruitment of employees. Although graphical profiles and create lists of other in China were publicly known before
blogging may have benefits for employers, people in the community with whom they reported by the media because of initial
these stories show why more employers are share a connection.2 Other people may Twitter messages.
beginning to take note of the legal risks of then view the profile and connections. Large organizations use Twitter to
employee blogging. Besides MySpace and Facebook, other educate the public about their products
Emerging Web 2.0 facilities are user- networking sites such as LinkedIn, Plaxo, and services. Examples are Cisco Systems,
created, interactive, and user-generated. and Flickr are quickly gaining popular- Jet Blue, H&R Block, Sun Microsystems,
The very name reflects the more interac- ity. Social networks can even be used in and Whole Foods Market.6 Over 3,000
tive and collaborative aspects of this new virtual communities such as Second Life. people subscribe to Whole Foods’ tweets
generation of technological advances that The term “blog” has earned a place about promotions, new items, and product
are vastly different from the more static in Merriam Webster’s Online Diction- recalls. Whole Foods uses Twitter for pro-
Web 1.0 technology. These interactive ary, which defines it as “a Web site that motional activities. For example, in the
contains an online personal journal with “Tweet of the Day” program, the chosen
Patty A. Wise is a partner with Cooper and reflections, comments, and often hy- tweet may be awarded a $25 Whole Foods
Walinski in Toledo, Ohio, as well as a visiting perlinks provided by the writer.”3 More gift card.7 Scottsdale, Arizona’s police de-
professor of employment law at the University advanced technology includes “micro- partment uses Twitter to inform the public
of Toledo College of Law. blogging.” Twitter is the best example of of crime, road closures, and other safety

7 Published in Employment & Labor Relations Law, Volume 7, Number 4, Summer 2009. © 2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Employment & Labor Relations Law Summer 2009

issues.8 Also, the Los Angeles Fire Depart- the New Jersey Supreme Court held that of its products or services. Online postings
ment uses Twitter to send out wildfire Continental Airlines had a duty to pre- could also harm a company’s goodwill.
updates.9 This second-by-second broad- vent defamatory and harassing statements In Varian Medical Systems, Inc. v.
casting, to exponentially increasing groups made by its pilots in an online forum if Delfino,13 two former employees posted
of receivers, can result in exactly the kind the company benefited from its employ- derogatory messages about their former
of public dissemination that would cause ees’ use of the forum. employer and its executive employees on
an employer legitimate concern. The court held that employers have a Internet bulletin boards. The employees
Issues may arise even if employees do duty to stop co-employee harassment “in accused the employer of lies, hallucina-
not belong to an online social network settings that are related to the workplace” tions, mental illness, incompetence,
or use Twitter. Internet users often leave if the employers know or have reason to harassment, discrimination, and stalking.
comments on message boards. Many sites, know that harassment is taking place. The The employees also implied that another
such as cars.com, allow consumers to post court reasoned that employee had sex with her supervisor to
reviews.10 Such dissemination of opinions obtain her job. In their defense, the for-
also occurs on sites concerning hotels severe or pervasive harassment in a mer employees argued that no one would
and many other products and services. work-related setting that continues take an outrageous anonymous post-
Wikis—the first cousin of the blog—pose a pattern of harassment on the job ing on the Internet seriously. The court
is sufficiently related to the work- disagreed, holding that the employees’
place that an informed employer accusations were libelous.
Discipline of an who takes no effective measures to
stop it, sends the harassed employee The Communications Decency Act
employee could the message that the harassment is
acceptable and that the manage-
Often, the writer of a potentially libelous
statement may be anonymous or judg-
be interpreted ment supports the harasser. ment-proof. In those cases, some plain-
tiffs have attempted to hold the facilita-
as retaliation The Blakely court noted that the
employer benefited from activity that
tor of the communication liable. The
server or a blog owner may be alleged to
for engaging occurred online because it gave employees
access to information on certain benefits
be the facilitator.
Courts, however, have roundly
in protected and increased operational efficiency. The
court analogized Continental’s online
defeated these attempts based on the
Communications Decency Act.14 This act
speech. forum to a company bulletin board and immunizes providers or users of interac-
concluded that it had “little doubt” that tive computer services from any cause
if the messages were posted on a com- of action that would make them liable
additional problems. The most well- pany bulletin board, such messages would for publishing information provided by
known wiki is the online encyclopedia be considered part of the workplace set- a third-party user of the service. Blog
Wikipedia, which allows Internet users ting. The court did not require employers owners are not liable for defamation on
to edit an entry’s information. Although to monitor employees’ private email; it the basis of comments made by others.
these sites may benefit consumers, they required only monitoring of a work- This is known as the Zeran rule.15 The act
can pose the same problems for employers related setting.12 does not, however, apply to intellectual
as online social networks and blogs. The decision in Blakely underscores property infringement.16
that if an employer maintains a blog or The consequences mandated by this
Defamation, Harassment, and Threats other online forum, the employer must act are unsatisfactory to some courts. For
“Cybersmearing”—libel and defamation monitor its usage and prohibit harass- example, the California Supreme Court
that occurs online—is a key concern for ment. If the employer does not maintain noted in Barrett v. Rosenthal17 that it could
employers. An employer could find itself its own blog or online forum, it should not sanction the blog facilitator. “[R] ec-
defending its employee’s unauthorized still clearly prohibit online harassment. ognizing broad immunity for defamatory
postings against claims of defamation, Most employers already have an anti- republications on the Internet has some
harassment, or trade disparagement. harassment policy and a policy prohibit- troubling consequences. Until Congress
Of course, employers must prohibit ing threats of violence; both should chooses to revise the settled law in this
harassment in the workplace. Employers reference online conduct. area, however, plaintiffs who contend
may also be liable for off-duty conduct, Conversely, employers may find them- they were defamed in an Internet posting
and so must ensure that employees are selves in a position where they must may only seek recovery from the original
prohibited from harassing other employ- prosecute a defamation suit. A company source of the statement.”18 Even if the
ees in any work-related environment. might seek to prevent a competitor from facilitator knows that the information or
In Blakely v. Continental Airlines, Inc.,11 posting false information about the quality speech is unlawful, such knowledge is “not


Summer 2009 Employment & Labor Relations Law

enough to make it the service provider’s also served on an interview committee to would provide in this regard. In the
own speech.”19 select a replacement for her prior position. Register Guard case, the National Labor
Employers that maintain blogs or Richerson openly blogged about the Relations Board favored management and
online forums should guard against copy- replacement that the school district hired, found that the NLRA does not mandate
right and trademark infringement. The describing him as a “smug know-it-all access to employers’ email systems for
Communications Decency Act will not creep” and calling him “mighty white union-organizing communications.24 An
insulate them from liability for copyright boy.” One entry was titled “Save us White Italian labor union recently organized the
and trademark infringement that occurs Boy!” She discussed the interview com- first ever virtual protest in Second Life.
on company-maintained blogs. mittee proceedings and noted that she The virtual protest included picket lines
disagreed with “Boss Lady 2.0’s” decision and protest kits for all interested avatars.25
Online Social Networking to hire the new employee. She also criti- Employees disciplined for such activities
and Discrimination Claims cized the teachers’ union, stating “What may contend that they were engaging in
If an employer discovers that an employee I wouldn’t give to draw a little Hitler protected conduct.
has engaged in objectionable communica- mustache on the chief negotiator.” Title VII also prohibits employers from
tions online, then discipline is appropriate. After the school district became aware retaliating against an employee because he
As always, employers should exercise cau- of the blogs, it reassigned Richerson to or she opposed any discriminatory practice
tion and do so uniformly. The discipline full-time teaching duties. The district or because the employee was involved in
could serve as the basis of a discrimination reasoned that her blog compromised her investigations or proceedings under Title
claim if the employer treats similarly situ- ability to perform duties as a confidential VII. Other claims of retaliation could
ated employees differently. and non-evaluative mentor. Richerson arise if an employee engages in protected
One prominent case involved a Delta filed suit alleging retaliation for engaging speech under the Americans with Dis-
Airlines flight attendant who maintained in protected speech. abilities Act, the Age Discrimination in
a blog that included pictures of herself in The court analyzed the blog under the Employment Act, the Earned Retirement
the Delta uniform.20 Delta fired her be- public concern test.22 Public employees Income Security Act, the Fair Labor Stan-
cause the pictures were too revealing. The may engage in protected speech de- dards Act, or Family Medical Leave Act
employee sued Delta for gender discrimi- pending on whether the speech impairs (FMLA).26 For example, an employee’s
nation and alleged that male employees discipline or control by superiors; disrupts complaint on a blog that the employer
posted online pictures of themselves in coworker relations; erodes close working is not properly allowing sick leave could
the uniform while engaging in more ob- relationships premised on personal loyalty implicate the FMLA. An employer that
jectionable conduct. Before taking adverse and confidentiality; interferes with the disciplines this employee may be accused
action against an employee based on speaker’s performance of his or her duties; of retaliation. Lawyers should advise
online conduct, an employer must ensure or obstructs routine office operations.23 their clients to closely analyze whether
that other employees are not engaging in The court held that the online conduct the online communication contains any
similar online conduct, and strive to treat would present “severe difficulties” in the protected speech.
all similarly situated employees uniformly. proposed mentoring relationship. The
court seemed surprised at the school Access to Protected Information
Online Social Networking board’s failure to impose punishment, Another potential advantage of Inter-
and Retaliation Claims calling the employee’s behavior salacious, net and online social networks is that
Public employers must also be aware that mean-spirited, racist, and sexist. The employers may use them to analyze job
an employee’s online communications— comments “far exceeded normal standards applicants. However, employers may not
no matter how objectionable—may of decency,” and had no relevance to access or consider information that the
involve protected speech. An employer’s matters of public concern. As a result, the law prohibits in making employment deci-
discipline of an employee could be inter- court granted summary judgment to the sions. The employee’s online profile may
preted as retaliation against the employee school district. Although the employer contain protected information about age,
for engaging in protected speech. was ultimately successful in this litigation, marital status, familial status, or religious
In Richerson v. Beckon,21 a teacher sued the case suggests that an employer should affiliation. The employer’s knowledge of
her school district alleging retaliation for carefully evaluate online communication this information could give ammunition
engaging in protected First Amendment to ensure that it does not include pro- to a discrimination claim by a denied ap-
speech. Richerson had been assigned a tected speech. plicant. One possible solution is to have
position that required her to spend half of Employees may also seek protection a non-decision-maker perform the search
her time as a teacher and half of her time for “concerted activity” for “mutual aid or and report only the non-protected infor-
in a coaching and mentoring role, where protection” in communications regarding mation to the decision maker. Employers
she was to maintain a peer relationship wages, hours, and working conditions. It should also consider discussing any infor-
with other teachers and give non-evalu- is not yet clear how much protection the mation that would preclude employment
ative and confidential advice. Richerson National Labor Relations Act (NLRA) with an applicant, to verify authenticity.



Disclosure of Proprietary Information communications is permissible after the • whether the policy should address
Employees should never divulge trade communications are sent.31 Also, an “anonymous” communications
secrets or other proprietary or confidential employer may monitor communications if • whether the policy should include
information in online communications. there is a legitimate business purpose or if both broadcast and peer-to-peer
Misuse of company logos and trademarks the employee consents.32 formats
is also of concern to employers. Employ- • whether prohibiting instant
ers should update their confidentiality Drafting Policies to Prevent Problems messaging or texting is necessary
policies, employment agreements, and Lawyers should assist employer clients in or desirable
noncompetition agreements to address drafting clear policies that address blog- • whether permission or pre-approval
online social networks and peer-to-peer ging, micro-blogging, and other online for Intranet postings is required
broadcasting technology such as Twitter. conduct. Such policies should address all • whether permission or pre-approval
technology, including instant messag- for the use of quotations, tag lines,
ing and social network sites. Employers icons, logos, etc., is required for
The policy should assess the unique characteristics of
their workforce, environment, industry,
email messages, either internal
or outbound
should advise competitors, and markets. • whether limitations on the use
An employer’s policy should advise of electronic devices or ear buds
that any online that any online communication could is advisable; for example, during
quickly be broadcast to millions of read- meetings or while driving
communication ers. The content may also continue to • whether the issue of blogs and
circulate for years, even after revisions by other Internet postings should
could quickly the original author. Defamation, harass- be addressed in settlement and
ment, and other negative conduct must severance agreements with former
be broadcast be prohibited. The policy should state employees

to millions of clearly that users of employer-owned
resources (including computers, laptops, For blogging in particular, employers
readers. cell phones, and PDAs) should have no
expectation of privacy, nor an expecta-
should consider the following:

tion of privacy in stored or deleted files. • whether to prohibit non-work
Two risks arise in this area. First, there Employees should be advised that email related blogging while at work or on
is the possibility that trade secret, propri- and Internet use on the company’s systems work time
etary, or confidential information will be will be monitored. The policy should also • whether to address blogging outside
disseminated. Second, an unauthorized advise all employees that all communica- of work, being cautions not to
disclosure that becomes widely dissemi- tion systems, employer-owned or -issued overreach, and being mindful of
nated may result in the loss of trade secret equipment, or data, in whatever form, applicable state laws
status. Prohibition of such communica- belong exclusively to the employer and • what other applicable policies, such
tions and prompt, effective action to may be used only for legitimate business as confidentiality, should be included
address any unauthorized disclosures are purposes of the employer. The employee in materials about blogging
necessary responses by employers in should sign an acknowledgment of receipt • whether or when to limit use of
these situations.27 of the policy. Employers must also enforce the employer’s name or logo, and a
the policy uniformly to prevent accusa- prohibition of online conduct that
Monitoring Employees’ Communications tions of discrimination. Lawyers should could damage the employer’s busi-
To reduce these legal risks, some em- also monitor state law in this rapidly ness or reputation
ployers may wish to monitor employees’ changing area. State laws differ widely
electronic communications. This is advis- on the extent to which an employer may An employer should consider all of these
able in many situations, but monitoring regulate an employee’s off-duty conduct. issues when developing and enforcing
poses its own set of legal issues. Monitor- All policies regarding online com- policies, to reduce the risk of liability.
ing can implicate privacy issues and the munications should clearly prohibit
Electronic Communications Privacy Act offensive or harassing communications Endnotes
of 1986,28 which prohibits the intercep- or threats related to employment in any 1. Jill Schachner Chanen, Risky Blogness,
tion of transmissions of electronic data by way. These prohibitions should also be ABA Journal, November 2008, at 25.
computer. The act, which applies to pri- part of an employer’s policies prohibiting 2. Danah M. Boyd & Nicole B. Ellison,
vate entities as well as the government,29 discrimination, harassment, retaliation, Social Network Sites: Definition, History, and
expressly allows for the recovery of civil and threats of violence. Further policy Scholarship, Journal of Computer-Mediated
damages.30 Monitoring of electronic considerations include: Continued on page 12



You’re Fired
continued from page 10 concrete suggestions for the develop-
From the Editors ment of an effective policy.
Communication, 13(1), 2007, available at http:// continued from page 2 In the complicated area of elec-
jcmc.indiana tronic discovery, Michael Swarz, in
.edu/vol13/issue1/boyd.ellison.html. Cherie Silberman in an article en- the article “Don’t Get Left Behind:
3. Merriam-Webster Online Dictionary, titled “Employment Investigations: Why Leveraging Electronic Discovery
www.merriam-webster.com/dictionary/blog, last Selecting an In-House or Outside in Employment Proceedings Matters,”
visited Mar. 12 2009. Investigator.” This thoughtful article provides a number of practical insights
4. Other micro-blogging tools are Jaiku and reviews a number of key aspects in dealing with electronic discovery
Plurk. of an investigation, including the matters in the employment context.
5. Jodi Mardesich, Business Uses for Twitter, selection of an experienced investi- Finally, the question of punitive
Inc., Jan. 17, 2009, http://technology.inc.com/ gator, the importance of objectivity, damages and their application in the
networking/articles/200809/twitter.html. the implications of the Fair Credit employment context is addressed by
6. Id.; Heidi Homa, Police a-Twitter over news Reporting Act in this context, pres- Melissa Yoon in “Navigating Puni-
alerts, Ariz. Republic, (Aug. 27, 2008), available ervation of attorney-client privilege, tive Damages in the Wake of Exxon
at www.azcentral.com/community/chandler/ and the essential need for conduct- Shipping Co. v. Baker.” Ms. Yoon
articles/2008/08/27/20080827abrk-twitter0828 ing a prompt investigation. highlights the recent recognition
.html (last visited Jan. 17, 2009). The ever-emerging new techno- of due process limitations in the
7. Jodi Mardesich, Business Uses for Twitter, logy that continues to change the punitive damage award context and
Inc., Jan. 17, 2009, http://technology.inc.com/ global communication network and provides an analytical framework in
networking/articles/200809/twitter.html. the American workplace is addressed evaluating punitive damage awards.
8. Heidi Homa, Police a-Twitter over news by Patty Wise in “Tweet, Tweet, In this regard, the applicability of the
alerts, Ariz. Republic, (Aug. 27, 2008), available You’re Fired.” Ms. Wise covers a recent Exxon case by the Supreme
at www.azcentral.com/community/chandler/ number of key points in connection Court is analyzed and discussed with
articles/2008/08/27/20080827abrk-twitter0828 with this growing area, including respect to its potential applicability
.html (last visited Jan. 17, 2009). the current legal landscape of blogs to the employment arena.
9. Id. and social networks; concerns with As always, your comments and
10. See www.cars.com. respect to “cybersmearing” and the articles are welcome. This newsletter
11. 751 A.2d 538 (N.J. 2000). implications for defamation, harass- is sent with the hope that you are in
12. Blakely, 751 A.2d at 552 (“To repeat, ment, and threats; the Communica- good health and spirits during this
employers do not have a duty to monitor private tions Decency Act; online social summer time.
communications of their employees; employers do networking and discrimination
have a duty to take effective measures to stop co- claims; and a host of other issues. Bill Martucci
employee harassment when the employer knows In addition, the author provides Brian Koji
or has reason to know that such harassment is
part of a pattern of harassment that is taking
place in the workplace and in settings that are
related to the workplace.”). 20. Simonetti v. Delta Airlines Inc., 4–6,(Thompson Publishing Group 2007) (2000).
13. 113 Cal. App. 4th 273 (Cal. App. 2003), No. 5-cv-2321 (N.D. Ga. 2005). 27. See DVD Copy Control Assoc. v. Bunner,
rev’d on other grounds, 106 P.3d 958 (Cal. 2005). 21. 2008 WL 833076 (W.D. Wash. Mar. 27, 116 Cal. App. 4th 241 (2004).
14. 47 U.S.C. § 230. 2008). 28. 18 U.S.C. § 2511.
15. Zeran v. Am. Online, Inc., 129 F.3d 327 22. Pickering v. Bd. of Educ., 391 U.S. 563 29. Kratz v. Kratz, 477 F Supp 463 (E.D.
(4th Cir. 1997). (1968). Pa 1979); United States v. Burroughs, 564 F.2d
16. Parker v. Google, Inc., 422 F.Supp.2d 492 23. Richerson v. Beckon, 2008 WL 833076. 1111 (4th Cir. 1977), overruled on other grounds
(E.D. Pa. 2006). 24. The Guard Publishing Company, dba The by United States v. Steed, 674 F2d 284 (4th
17. 40 Cal. 4th 33 (2006). Register Guard, 351 NLRB No. 70 (2007). Cir. 1982).
18. Id. at 40. 25. Rick Smith, Virtual Solidarity: IBM Work- 30. 18 U.S.C. § 2520.
19. Universal Commun. Sys. v. Lycos, Inc., ers to Launch Strike in Second Life, Local Tech 31. Eagle Inv. Sys. Corp. v. Tamm, 146
478 F.3d 413, 420 (1st Cir. 2007) (also stating Wire, Sept. 22, 2007, http://localtechwire.com/ F.Supp.2d 105 (D. Mass. 2001).
that “Section 230 immunity applies even after business/local_tech_wire/news/story/1849345/. 32. Simmons v. Sw. Bell Tel. Co., 452 F Supp
notice of the potentially unlawful nature of the 26. Patricia A. Wise, Understanding 392 (W.D. Ok. 1978), affd, 611 F.2d 342 (10th
third-party content”). and Preventing Workplace Retaliation, Cir. 1979).


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