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Since 2002, Web sites such as Facebook, Myspace and Friendster have made blogging at or about the workplace routine. In response, employers are beginning to take notice of what their employees say and do in cyberspace. More importantly, employers have begun making employment decisions and taking disciplinary action against applicants and employees because of their online activities.

According to a 2007 survey of large employers reported by Wired magazine, 19 percent of the companies surveyed had disciplined an employee for violating the company’s message-board or blogging policies.

Allegations from employees confirm the trend. In one instance, an employee at a coffee shop claimed he was terminated after using his blog to vent his frustrations over his job and his manager’s alleged unfairness.

A number of employers have also taken to using the Web to check out the online activities of applicants prior to making job offers. As a result, the seeds have been planted for a host of potential claims by affected applicants and employees.

For example, in Simonetti v. Delta Airlines Inc., filed in the U.S. District Court for the Northern District of Georgia, a flight attendant filed a gender discrimination action alleging that she was fired for posting sexually suggestive photos of herself wearing her company uniform. (The matter is currently stayed pending bankruptcy court proceedings.)

In addition, third parties have begun seeking civil restitution from employers for what they knew or should have known about their employees’ online activities. In Doe v. XYC Corp., an employee downloaded nude photos of his 10-year-old stepdaughter while at work. The company had a policy against nonbusiness use of its system and had reserved the right to monitor its employees’ Internet activities. Indeed, the company had tracked the employee’s Internet usage and was aware that he was visiting pornographic Web sites. Although it counseled the employee to discontinue the activity, the company never opened any of the Web sites he visited or otherwise further investigated the matter.

After the employee was arrested on child pornography charges, the girl’s mother sued the employer for negligently failing to stop the employee’s illegal activity, thereby allegedly allowing the employee to continue secretly photographing and molesting the youth. In reversing the trial court’s granting of summary judgment in favor of the employer and remanding the case, the New Jersey Appellate Division found that the employer clearly had notice of inappropriate conduct by the employee and that this notice created a duty to investigate further. It further found that such an investigation would have revealed the scope of the employee’s conduct and that this triggered a duty to act.

In these days when almost everyone can access the Internet from a handheld phone, one can expect an increase in claims such as those asserted in Simonetti and Doe. As a result, both employers and employees need to understand their rights and obligations with respect to online activity.

As a general rule, with the exception of some secure and/or private sites, employees and applicants have a limited expectation of privacy with respect to their online postings. This is especially true when the employee is using the employer’s computer system to access the Internet. Thus, comments made on a blog, message board or Web page have the same effect as if they were otherwise broadly published or spoken orally. As a result, an individual who admits via cyberspace to violations of company policy or illegal activity (such as drug use), or who engages in other conduct unacceptable to the company, can be disciplined or denied employment.

An employer may limit or prohibit the nonbusiness use of its computer systems and retain the right to discipline employees for unauthorized use. As a practical matter, most businesses have given up the zero-tolerance approach with respect to personal use of their computer systems, and either specifically allow or tacitly tolerate some de minimus nonbusiness use by their employees. To effectively maintain control over such use and minimize the risk of liability that can result from abuse of the privilege, employers should consider formalizing their computer and Internet-use policies.

At the outset, employees should be put on notice that the company retains the right to monitor and review any use of its systems or applications, including employee e-mails. This serves two goals.

First, it provides a deterrent effect in that employees who know that their activities may be monitored are less likely to engage in the offensive conduct.

Second, where employees are given such advanced notice they are less likely to bring (or win) invasion of privacy claims when the employer’s oversight of the system leads to discipline or discharge.

The policy should also spell out what conduct is prohibited. Most anti-harassment policies already set forth the prohibition against the use of offensive or inappropriate language, photos, graphics, etc. However, the employer should also consider addressing other uses it deems inappropriate in the policy. If usage is limited in time or excludes certain Web sites regardless of their content (e.g., shopping/entertainment), the policy should so provide.

Internet policies can also reinforce a company’s confidential information and nondisclosure policies. In fact, some employers specifically preclude the use of the company name or logo in any Web-based personal communications (such as Web profiles) by employees. This helps to preclude third parties, including competitors, from using the Internet to identify disgruntled employees for the purpose of enlisting them in efforts (whether legal or not) to harm the company.

As with any employment policy, consistent application is helpful in limiting potential discrimination suits and in defending against those suits that are filed.

Any disciplinary action taken against the employee can potentially raise the issue of whether the action was taken because of the employee’s inappropriate conduct or for some other reason. Consistent application of policies and uniformity of discipline helps to level the playing field.

In short, if all employees are disciplined for particular conduct, claims of discrimination or retaliation automatically become less credible and less sustainable.

As anyone who has used Google or other search engines can attest, simple Web-based searches can yield a considerable amount of information about an individual. Some employers have embraced this technology to look beyond conduct at the workplace while others shy away from it because of the fear that they may learn information that may not legally be considered for employment purposes.

As long as the proper checks and balances are in place with respect to employment decisions, however, employers need not completely abandon the Web as one of the tools at their disposal.

For example, while it is true that a Web page or blog posting may reveal information about an employment candidate’s protected status (for example, her religion), it is equally likely that the candidate could blurt out that same information during her job interview. In this regard, it is important to remember that the same anti-discrimination and anti-retaliation rules regarding hiring, firing, discipline and promotion apply regardless of the source of the information. Where managers are trained not to consider certain information in employment decisions, and there is a check on the managers’ decision-making (for example, a review by human resources), the fact that the employer consulted the Web in making its employment decision should not adversely affect it. Nevertheless, there are some pitfalls to be avoided.

At the outset, individuals may (correctly or not) have a greater expectation of privacy with respect to their off-time Web activities. In addition, where the employer’s search is conducted by a third party, the restrictions of the Fair Credit Reporting Act apply.

The FCRA provides that where an adverse employment action is taken as a result of a background check performed by a third party, the employer must provide the individual with notice and an opportunity to respond.

Although the FCRA only applies where employers use third parties to perform background checks and not where the employer itself performs the check, the potential unreliability of information posted on the Web, and the risk of claims of errors by applicants, essentially requires employers performing their own background research to implement similar types of safeguards.

In particular, the FCRA requires that the employer must give the applicant a clear and conspicuous written disclosure that a report may be obtained for employment purposes and obtain the applicant’s signed authorization to perform the background check. Where the results of the background check may lead to an adverse employment action, the employer must provide the applicant with a Pre-Adverse Action Disclosure Notice, which contains a copy of the background report and provides the individual the opportunity to challenge the report and correct any inaccurate information before the adverse action is taken.

As one would expect, the ability to follow employees in cyberspace presents employers with a mixed bag of benefits and burdens. As the technology of the Web advances and its use becomes even more widespread, more employers are likely to face issues related to how they use the technology available to them in dealing with their workforces. Employers must consider these issues before logging on.

This article originally appeared in the

New Jersey Law Journal , a publication of ALM.

DOMINICK BRATTI is a partner at Fox Rothschild in Roseland, N.J. He limits his practice to labor and employment law. He thanks Daniel Kuperstein, an associate at the firm, for his assistance with the article.

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