Trolling the Web for Employee Information is Fraught with Peril
When Pennsylvania high school teacher Natalie Munroe was suspended earlier this year for calling some of her students “ rude, lazy, disengaged whiners” on her online blog, her case triggered a firestorm of controversy in legal circles over the use of online postings to make important employment decisions. It should come as no surprise that employers routinely check out what job applicants and current employees are saying and doing online, and school districts are no exception. The instant access to so much personal data makes searching online irresistible, but the impulse to search out employee information on the web should be tempered by the reality that the legal ground rules are still evolving in the courts, and serious consequences await those who go too far.
Old Problems, New Twists
The emerging technology of the digital age has sharpened the focus on some age-old legal questions that employers have been struggling with since long before the advent of the Internet—questions like, how much of an employee's private life is the employer entitled to know about, and how much of what the employer learns is legally relevant to the employee's fitness for employment. I say “ legally” relevant because much information about an employee's private life clearly has a bearing on the ability to do one's job but, for public policy reasons, we are required to ignore it. Employees' pregnancy, illness, or disability may directly affect their ability even to show up for work, but we are all familiar with federal and state anti-discrimination laws that restrict an employer's ability to take these conditions into account, even if the employer is inconvenienced. There are still other restrictions that you probably haven't heard of, such as a New Jersey statute prohibiting refusal to hire a candidate because he or she “ does or does not smoke or use tobacco products” without a rational basis related to job duties.
Expectation of Privacy
Invasion of legally protected privacy is a major concern, when gathering information about employees online. The weight of legal authority holds that if online information is freely accessible by the public at large, without entering a secure site, there's usually no reasonable expectation of privacy. So, if a parent approaches you with an unsolicited printout of a disturbing post from an employee's Facebook page, you probably haven't violated the poster's privacy rights. On the other hand, if you encourage the poster's “ friend” to feed you information available only to other “ friends”—or, even worse, you masquerade as the “ friend” yourself—you'll find yourself in trouble. The full extent of the law you may be violating has not yet been determined, but the most likely contender is the Stored Communications Act, a federal law punishing anyone gaining unauthorized access to certain information stored on computer systems. This law was passed years before Internet usage was widespread, but some courts have applied it to social networking sites.
For example, in Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), a restaurant manager coerced a staff member into providing her password to “ Spec-Tator,” a password-protected chat group on MySpace, where an employee was posting statements critical of the employer. The court held that the employer's access to the site was not “ authorized” under the Stored Communications Act, and found for the employee. In Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), cert. den., 537 U.S. 1193 (2003), a pilot had created a password-protected blog where he posted comments blasting his employer's labor tactics. Only rank-and-file employees were authorized users. A manager gained access to the blog with a password voluntarily given to him by one of those employees who, apparently, did not care for the blogger himself, and the pilot was suspended for his comments. The court allowed a claim to proceed under the Stored Communications Act because, as it turned out, the employee who consented to the manager's use did not meet the statute's technical definition of an “ authorized” user, so neither did the manager. Bottom line, don't sneak into a private site uninvited, or you'll be in trouble.
A 2010 New Jersey Supreme Court case expanded the privacy rights of employees in ways that could have implications for online snooping. In Stengart v. Loving Care Agency, Inc., 201 N.J. 300 (2010), an employee used a laptop computer, issued to her by her employer for business purposes, to exchange e-mails with her attorney about her situation at work via her personal password-protected Yahoo account. Unbeknownst to the employee, the laptop's browser software automatically saved a copy of each web page she viewed on the computer's hard drive in a “ cache” folder of temporary Internet files. The employee later left the company, returned the laptop, and filed an employment discrimination suit where the discoverability of those e-mails was addressed by the Court. In holding that the e-mails were privileged on various grounds, the Court identified the common law tort of “ intrusion on seclusion” as a source of authority for privacy-related claims related to computer-stored information. Quoting from a recognized treatise on tort law, the Court held that "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." How this new cause of action will be applied to online searches remains to be seen.
Legally Acquired Information
Assuming you haven't come into possession of the online information illegally, there remains the question of what use you can make of it. Let's suppose you come across a Facebook post in which one of your teachers has made inflammatory remarks about a new redistricting plan your school board is considering, portraying the board and the administration in a bad light. School districts have wrestled with how to deal with such public criticism from employees since long before Facebook, and there remains no bright line test; however, a landmark U.S. Supreme Court case from the 1960s offers some guidance. In Pickering v. Board of Education, 391 U.S. 563 (1968), an Illinois high school teacher was fired for writing a letter to the editor critical of the district's financial affairs. The Court overturned the dismissal, holding that public employees enjoy a First Amendment right to express themselves on matters of legitimate public concern, as long as they do so on their own time as private citizens, and their comments do not disrupt any close working relationships necessary to perform their job.
Evolving Standards
Natalie Munroe claimed that she was merely offering a commentary on the sad state of public education, didn't use her full name, and never revealed the identities of her students or even her high school. But consider the case of two North Carolina teachers who faced termination for their postings on Facebook that said “ I'm feeling pissed because I hate my students,” and I'm “ teaching in the most ghetto school in Charlotte.” Or how about a teacher who claimed she was taking off for bereavement leave but posted pictures of herself on Facebook drunkenly partying in Vegas? Common sense tells us that such behavior may well reflect on these teachers' fitness for continued employment. Indeed, the New Jersey Commissioner of Education has often observed, in tenure charge cases over the years, that school employees are expected to conduct themselves as “ role models,” and behavior tending to undermine that image could be grounds for dismissal. The problem is that the tenure charge cases applying the “ role model” standard are very much a reflection of the eras in which they were decided, and courts today are far more protective of employees' off-the-job conduct and lifestyles than in the past, unless they directly affect on-the-job performance.
Accidental Discrimination
Is it possible to know too much? It turns out that Natalie Munroe was eight months pregnant when her blog came to the attention of school authorities. Suppose she were applying for a job in your district, and you stumbled over a photo of her on Facebook that landed in her application folder. Pregnancy-related discrimination is unlawful, and now you're on notice that she is a member of that protected class. Or what of all the other personal information displayed on employees' Facebook pages, such as political and religious affiliation, sexual orientation, group affiliations, and controversial hobbies or recreational activities. Even if you had sound reasons to decline an interview with a job applicant, were it ever to come to light that you were aware of these matters, the burden would be on you to prove they weren't a factor in your decision.
Staying Safe
As you can see, trolling the web for dirt on employees is fraught with legal implications, but follow these guidelines and you should stay on the right side of the legal line:
- Since your district will be held legally accountable for your actions, check first with your district's legal counsel to determine whether to access the Internet for information on current or prospective employees in the first place.
- Limit your searches to information available to the general public, and avoid private or password-protected sites.
- Avoid using any information that would disadvantage the employee based on legally protected status or conduct.
David B. Rubin is an attorney in private practice in Metuchen, New Jersey. His firm website can be accessed at www.rubinlaw.net.