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Anti Federalist
04-27-2009, 10:47 PM
Employers Watching Workers Online Spurs Privacy Debate (http://online.wsj.com/article/SB124045009224646091.html)

By DIONNE SEARCEY

By now, many employees are uncomfortably aware that their every keystroke at work, from email on office computers to text messages on company phones, can be monitored legally by their employers.

What employees typically don't expect is for the company to spy on them while on password-protected sites using nonwork computers. But even that privacy could be in jeopardy.

A case brewing in federal court in New Jersey pits bosses against two employees who were complaining about their workplace on an invite-only discussion group on MySpace.com, a social-networking site owned by News Corp., publisher of The Wall Street Journal. The case tests whether a supervisor who managed to log into the forum -- and then fired employees who badmouthed supervisors and customers there -- had the right to do so.

The case has some legal and privacy experts concerned that companies are intruding into areas that their employees had considered off limits.

"The question is whether employees have a right to privacy in their non-work-created communications with each other. And I would think the answer is that they do," said Floyd Abrams, a First Amendment expert and partner at Cahill Gordon & Reindel LLP in New York.

The legal landscape is murky. For the most part, employers don't need a reason to fire nonunion workers. But state laws in California, New York and Connecticut protect employees who engage in lawful, off-duty activities from being fired or disciplined, according to a report prepared by attorneys at the firm Proskauer Rose LLP. While private conversations might be covered under those laws, none of the statutes specifically addresses social networking or blogging. Thus, privacy advocates expect to see more of these legal challenges.

In February, three police officers in Harrison, N.Y., were suspended after they allegedly made lewd remarks about the town mayor on a Facebook account. The officers mistakenly thought the remarks were protected with a password, but city officials viewed the page, said Harrison police chief David Hall. The remarks about Mayor Joan Walsh might have violated the officer's code of conduct, he said.

Mr. Hall said the town board was considering firing the officers. The policemen have asked a federal judge in White Plains, N.Y., to limit the town of Harrison's inquiry into the online postings, citing privacy concerns, said Donald Feerick, the officers' attorney. Calls to Ms. Walsh weren't returned.

The case in New Jersey centers on two employees of Houston's restaurant in Hackensack, bartender Brian Pietrylo and waitress Doreen Marino, who in 2006 created and contributed to a forum about their workplace on MySpace.com. Mr. Pietrylo emailed invitations to co-workers, who then had to log in using a personal email address and a password.

"I just thought this would be a nice way to vent...without any eyes outside spying in on us. This group is entirely private," Mr. Pietrylo wrote in his introduction to the forum, according to court filings.

On the forum, Mr. Pietrylo and Ms. Marino, who was his girlfriend, made fun of Houston's decor and patrons, and made sexual jokes. They also made negative comments about their supervisors.

The supervisors were tipped off to the forum by Karen St. Jean, a restaurant hostess, who logged into her account at an after-hours gathering with a Houston's manager to show him the site. They all had a laugh, Ms. St. Jean said in a court deposition, and she didn't think any more about it.

But later, another supervisor called Ms. St. Jean into his office and asked her for her email and password to the forum. The login information was passed up the supervisory chain, where restaurant managers viewed the comments.

The following week, Mr. Pietrylo and Ms. Marino were fired. Houston's managers have said in court filings that the pair's online posts violated policies set out in an employee handbook, which include professionalism and a positive attitude. A lawyer for Hillstone Restaurant Group, which owns Houston's, declined to comment.

In their lawsuit, Ms. Marino and Mr. Pietrylo claim that their managers illegally accessed their online communications in violation of federal wiretapping statutes and that the managers also violated their privacy under New Jersey law.

But the courts might not view online musings as private communication. "You can't post something on the Internet and claim breach of privacy when someone sees it," said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J.

Ms. St. Jean said in a deposition she feared she would be fired if she didn't give up her password, a twist in the case that Mr. Maltby says could sway a jury against the company.

Labor and legal experts say the outcome of many employee privacy cases hinges on workers' expectations of their privacy rights -- particularly whether they have been given notice that they are subject to monitoring. In the Houston's case, the workers had no idea their online activities outside of work could be monitored, says their attorney, Fred J. Pisani. A trial is set for June 9.

Write to Dionne Searcey at dionne.searcey@wsj.com

Printed in The Wall Street Journal, page A13

Icymudpuppy
04-27-2009, 11:07 PM
What's the difference between talking bad about your employer at the local pub, and talking bad about them on MySpace? Both are public forums, and your employer could stumble into either and overhear the bad remarks directly, or hear about it through the grapevine.

If you don't like your job, then you are not a benefit to either your employer or yourself. It is not only appropriate for the employer to sever the contract for libel or slander that may hurt the company's sales, but it is probably best for the employee who has an opportunity to pursue a career that they will enjoy.

acptulsa
04-28-2009, 06:02 AM
Not to mention drug testing. Those things are absolutely no indication at all whether or not a person is sober at work--just whether or not they are sober at all times.

Anti Federalist
04-28-2009, 06:07 AM
Not to mention drug testing. Those things are absolutely no indication at all whether or not a person is sober at work--just whether or not they are sober at all times.

Drug testing was the "camel's nose in the tent".

Now, with the line between the corporate world and government forever blurred, the "private enterprise" arguments hold less water with me.

It's none of my employer's goddamn business what I do in my free time.

silverhawks
04-28-2009, 06:14 AM
But later, another supervisor called Ms. St. Jean into his office and asked her for her email and password to the forum. The login information was passed up the supervisory chain, where restaurant managers viewed the comments.

Hello? Right to privacy??

There is NOTHING to suggest that this woman was legally REQUIRED to hand over the login information for a private forum to her bosses.

People need to know their rights.

ARealConservative
04-28-2009, 06:36 AM
Drug testing was the "camel's nose in the tent".

Now, with the line between the corporate world and government forever blurred, the "private enterprise" arguments hold less water with me.

It's none of my employer's goddamn business what I do in my free time.

you are either a government employee or your not.

The only reason to obfuscate the issue is because you want to strip employer rights away.

Anti Federalist
04-28-2009, 06:40 AM
you are either a government employee or your not.

The only reason to obfuscate the issue is because you want to strip employer rights away.

As it stands right now, we are all becoming government employees.

The corporations act as tax collectors and police enforcers of government mandates.

Then the same legal rights should apply when dealing with an employer as with a cop.

ARealConservative
04-28-2009, 06:46 AM
As it stands right now, we are all becoming government employees.

The corporations act as tax collectors and police enforcers of government mandates.

Then the same legal rights should apply when dealing with an employer as with a cop.

complete class warfare variety bullshit

acptulsa
04-28-2009, 06:52 AM
complete class warfare variety bullshit

Why, yes, I agree that the total class warfare we're enduring in this nation right now is bullshit. That's why I'm working to stop it. I've had enough of this government of the corporations, by the corporations and for the corporations. It must perish from the earth.

ARealConservative
04-28-2009, 06:54 AM
Why, yes, I agree that the total class warfare we're enduring in this nation right now is bullshit. That's why I'm working to stop it. I've had enough of this government of the corporations, by the corporations and for the corporations. It must perish from the earth.

and how do you feel about a solution of treating every employer like he is a government agency?

acptulsa
04-28-2009, 07:05 AM
and how do you feel about a solution of treating every employer like he is a government agency?

All employers are not the same--yet. The small business is not extinct--yet. Self employment is not illegal--yet.

moostraks
04-28-2009, 07:22 AM
Why, yes, I agree that the total class warfare we're enduring in this nation right now is bullshit. That's why I'm working to stop it. I've had enough of this government of the corporations, by the corporations and for the corporations. It must perish from the earth.

Well said!!! You are not alone in this observation...

angelatc
04-28-2009, 07:26 AM
For the most part, employers don't need a reason to fire nonunion workers.

This.

ARealConservative
04-28-2009, 09:39 AM
All employers are not the same--yet. The small business is not extinct--yet. Self employment is not illegal--yet.

Funny, the person I replied to stated As it stands right now, we are all becoming government employees.

acptulsa
04-28-2009, 09:42 AM
Funny, the person I replied to stated As it stands right now, we are all becoming government employees.

Notice the -ing on that verb? I agree with him.

ARealConservative
04-28-2009, 09:48 AM
Notice the -ing on that verb? I agree with him.

so you are both nuts

acptulsa
04-28-2009, 09:49 AM
so you are both nuts

Time will tell. If you can't--or won't--see the trend, I don't know what to tell you.

ARealConservative
04-28-2009, 09:54 AM
Time will tell.

I play the card that are currently dealt. in this case I'm flush with class warfare advocates disguised as individualists

ARealConservative
04-28-2009, 10:15 AM
1) Does an employee have the right to sever a voluntary relationship between two individuals based on any criteria he deems important?

2) Does an employer have the right to sever a voluntary relationship between two individuals based on any criteria he deems important?

If you answered yes to 1 and no to 2, you are a class warfare advocate and seek a powerful government to violate individual rights. You can hide behind bullshit about slippery slopes involving employers and government all you want. You join the ever growing list of people that seek to empower government at the expense of individual rights…they all feel their pet cause is justified in doing so.

acptulsa
04-28-2009, 10:35 AM
You have a point. You're overstating it, but you have a point.

I, however, reject the 'class warfare activist' label unless by that you mean someone who not only thinks corporations should not have 'personhood status', but that this personhood status most certainly should never be allowed to trump an individual's 'personhood status'. If you consider that class warfare, I'm guilty.

ARealConservative
04-28-2009, 11:27 AM
You have a point. You're overstating it, but you have a point.

I, however, reject the 'class warfare activist' label unless by that you mean someone who not only thinks corporations should not have 'personhood status', but that this personhood status most certainly should never be allowed to trump an individual's 'personhood status'. If you consider that class warfare, I'm guilty.

This article didn't specifically deal with corporations, it was about a boss firing an employee.

class warfare is apparent whenever we have discussions about employee/employer relationships and it immediately becomes about the "evil corporations".

acptulsa
04-28-2009, 11:31 AM
Well, I never stated that I disagreed with the decision to fire the two employees cited in the WSJ. I was speaking on the broader topic of conversation. That said, you're being disingenuous. They were not fired by all of the stockholders of that corporation.

I have mixed feelings about the situation described in that story, and I don't really have enough facts to pass a meaningful judgement (and after reading something from the WSJ, imagine that). But I doubt I'd have liked that job nearly enough to voluntarily give my password to them. I've told bosses to get stuffed before.

ARealConservative
04-28-2009, 12:14 PM
Well, I never stated that I disagreed with the decision to fire the two employees cited in the WSJ. I was speaking on the broader topic of conversation. That said, you're being disingenuous. They were not fired by all of the stockholders of that corporation.

We don't even know if we are dealing with a corporation, and I don't see why it would matter.

So they filed for limited liability protection. That does not substantially change the nature of the employer/employee relationship. The employees boss would simply answer to many owners vs a single owner.

acptulsa
04-28-2009, 12:23 PM
We don't even know if we are dealing with a corporation, and I don't see why it would matter.

Maybe you don't, but I do. http://www.hillstone.com/


So they filed for limited liability protection. That does not substantially change the nature of the employer/employee relationship. The employees boss would simply answer to many owners vs a single owner.

And did they all come down to fire these people? No. Their hired underling did. In fact, they weren't even all in on the decision.

Not that it matters. But it does beg the question, what consists a private conversation any more? You make these little comments to individuals, nothing is carved in stone. You get through the day; it could even be argued that it builds morale. You have a sexy boss, it helps to say so to someone rather than keep it bottled up. A bad boss? Even more so.

These people used technology instead of their voices. Well, they were dumb to do so. But to force passwords out of people in order to see what was said but not available to the general public and was therefore arguably none of the corporation's business...

It could have done it no harm on a private forum without public access. In any case, I don't know how you can deny that the corporate action was Draconian.

That said, there's something to be said for letting the free market handle it as well. I know I won't be going out of my way to apply for a job with these people. Don't believe I'll be patronizing them, either. I don't want to deal with people who consider refusing to give up a password to a private internet forum a terminal offense.

Icymudpuppy
04-28-2009, 01:20 PM
Being a Limited Liability Corporation (LLC) doesn't mean you are publicly traded. I am a sole proprietorship, but my accountant suggests I should change to an LLC for tax purposes. It would still be just me running my business, but I would be protected from lawsuits that would seek to come after my personal assets not just my business assets.

Corporation doesn't always mean a group.

Knightskye
04-28-2009, 03:52 PM
If it's not in the contract, they don't have a right to do it.

ARealConservative
04-28-2009, 05:01 PM
Maybe you don't, but I do. http://www.hillstone.com/

what do you think this link established?




And did they all come down to fire these people? No. Their hired underling did. In fact, they weren't even all in on the decision.

the "underling" was given certain responsibilities and essentially act as an agent for people.


Not that it matters. But it does beg the question, what consists a private conversation any more? You make these little comments to individuals, nothing is carved in stone. You get through the day; it could even be argued that it builds morale. You have a sexy boss, it helps to say so to someone rather than keep it bottled up. A bad boss? Even more so.

Correct, it doesn't matter because we are dealing with mutual voluntary relationships.

I can use any ridiculous criteria I want to decide who to work for, or who to have work for me.


don't know how you can deny that the corporate action was Draconian.

I don't really like using words that infer a government action. Draconian implies laws broken with heavy consequences, and laws are based on govenrment monopoly.