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As if they did not have enough worries about the acts of unruly employees, companies now have to fret about their offensive statements in cyberspace. In a decision that potentially expands the workplace to include the online universe, a unanimous New Jersey Supreme Court has issued what appears to be the first ruling holding employers liable for employee harassment on an Internet bulletin board. The online anguish began back in 1995 for Tammy Blakey, a Continental Airlines, Inc., pilot, two years after she sued the company, claiming that pinups and vulgarities being tossed around the cockpit were creating a hostile work environment. While that battle ensued in federal court, fellow pilots started posting nasty messages on an online bulletin board hosted by CompuServe, but used routinely by Continental pilots and crew members to access schedule and flight information, as well as workplace chatter. It was the chat room part of the forum that got Continental into trouble, because pilots started using it to criticize Blakey, calling her an opportunist, charging that she had destroyed a company engine and floatplane, and viciously ridiculing her for her lawsuit. Denied the chance to amend her federal complaint, Blakey sued Continental in state court and named the pilots individually, raising the novel question of whether New Jersey had jurisdiction over them because their remarks had reached Blakey in New Jersey, though most of them didn’t live or work in the state. Blakey won at trial, in a verdict that after various adjustments amounted to $625,000. But a state appellate court reversed, finding no jurisdiction over the pilots and holding that Continental could not be held liable for their defamatory online statements. The state supreme court disagreed: If the bulletin board is integrally related to work, it becomes an extension of the workplace. It is in such extensions that relationships among employees “are cemented or sometimes sundered,” wrote Justice Daniel O’Hern in Blakey v. Continental Airlines, Inc. So if such a setting, whether physical or virtual, is a site for severe or pervasive harassment, the employer who knows or should know about it had better take serious steps to end it. As for the pilots, if their statements were published “with knowledge or purpose of causing harm” to Blakey in New Jersey, they had the requisite “minimum contacts” to support New Jersey jurisdiction. Experts say that employers should be worried. “Companies need to be on guard, particularly in terms of what knowledge they have about alleged inappropriate activity,” says Barry Pulver of the New Jersey Corporate Counsel Association. At the same time, observers stress that employers shouldn’t go around spying on their employees’ online actions. “We have been hearing for a long time about companies claiming concerns about such liability as justification for monitoring their employees’ use of the Internet,” says David Sobel, GC for the Electronic Privacy Information Center in Washington, D.C. Sobel insists that that’s the wrong answer: “If they’re concerned about liability, the worst thing they can do is have a policy of active monitoring.” The court echoed that apprehension, taking pains to stress that companies aren’t obliged to track their employees’ Internet use. But they should act once they’ve been notified of harassment. Which makes liability in the virtual world not all that different than in the real one.

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