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Image: Getty ImagesARTICLE TOOLSPrinter-friendly VersionEmail this ArticleSend A Note to the EditorReprints & PermissionsWeb 2.0 and the Potential Employment Law Pitfalls Jonathan S.

GoodgoldNew Jersey Law JournalJune 25, 2009Post a Comment Most people have heard of the term Web 2.0, or the interactive, user-generated content and social networking Web sites that comprise that term, i.e., Facebook, LinkedIn, Twitter, MySpace, blogs, etc.

Most social networking sites and blogs permit users to post almost anything about themselves online and have others see or comment on such posts.

Web 2.0 has created the opportunity for people to make public all aspects of one's private lives.

Since such Web sites permit the private lives of its users to become public, there are potential pitfalls and troubles that can face both employers and employees, prospective and current, if common sense and mindfulness of the New Jersey Law Against Discrimination (LAD) and other anti-discrimination laws are not utilized.At the outset, it must be noted that this writer is on Facebook and LinkedIn casually and in a very basic sense.

I do not blog and have never Tweeted.

In my limited personal use, I find it absolutely amazing how much information people share about themselves on the Internet on these Web sites.

People can post up-to-the-minute content indicating how they are feeling, what they are doing, post pictures, etc.

And this information is readily available for anyone to see, although at least some of these Web sites require registration before accessing the online content and some sites permit the information posted to either be public or private, requiring someone to be a "friend" of a user before seeing that user's online profile and postings.

FOR EMPLOYERS There are numerous questions Web 2.0 raises for employers, such as whether all of this information posted online can be utilized? If yes, what information can be accessed and utilized in an employment decision? If yes, what is now going to be considered due diligence? If it cannot be utilized, then why not? In short, based upon my review of the current status of the law, employers can access and utilize any of these tools to make employment decisions.

However, there is a caveat: They must do so in a manner that is not discriminatory, i.e., only using Web 2.0 to focus on women, minorities, etc.

If done improperly, an employer could face potential discrimination lawsuits.It is only a matter of time before the floodgates of litigation open, testing the boundaries, if any, that can be established as to the rights and expectations of both employers and employees on Web 2.0.

Already newscasts have covered potential lawsuits stemming from an online disparaging comment made by an employee while outside of work.

Further, there are examples throughout the Internet of various employees being terminated for postings on the Internet.

The most famous of which is that of Ellen Simonetti, a former flight attendant who filed suit in the Northern District of Georgia against her former employer, Delta Airlines Inc., bearing docket number 5-cv-2321.

Delta terminated Simonetti for posing sexily in her uniform on an empty plane, but without any identification of her employer, and then posting the photos on her blog.

She was allegedly terminated for this posting, which was deemed inappropriate.

The status of the lawsuit as of this writing is believed to be still pending.Other, more recent firings for inappropriate postings making the news include: nurses in Wisconsin being terminated for posting pictures of a patient's X-ray of a sex toy lodged in the patient on Facebook; University of New Mexico Hospital workers being terminated for taking pictures of patient injuries with their cell phone cameras and posting them on MySpace; and three teenaged employees of a Kentucky Fried Chicken establishment were fired and quit over pictures of them treating a large sink used for cleaning dishes as a hot tub and then posting the photographs on one of their MySpace pages.

These three more recent terminations are more egregious cases of employee wrongs that required termination, but not every case contains such running afoul of common sense and an employee's duty to the employer.

Employers must understand that Web 2.0 is not the run-of-the-mill Internet and raises many more issues than just basic e-mails, as they do not raise the privacy issues that e-mails pose, especially if sent from private e-mail accounts.

The recent case of Stengart v.

Loving Care Agency, Inc ., No.

BER-L-858-08 (Bergen County), is tangentially relevant to Web 2.0.

In that case, the plaintiff sent e-mails on her private Web-based e-mail account during work hours to her attorney prior to leaving her employment and filing her harassment suit against her employer.

The employer's forensic team uncovered temporary Internet files that contained the contents of discovery.

This information was provided to the plaintiff in discovery and the plaintiff sought sanctions.

The court primarily relied upon the strongly worded electronic communication policy that set forth that any of the technology utilized by the company was company property and that it included all e-mails, Internet usage, communications and computer.

Of import from this decision is the necessity of employers to have strongly written policies concerning the use of the Internet and communications on company time.

This then raises a host of questions -- what occurs when an employee is on his or her private time and not using the employer's technology? What occurs when the communications are not private e-mails, but public postings on Web 2.0? The lesson to be taken from Stengart is that employers should be working on Internet posting/communication policies for conduct when employees are off-work.

Further, such policies must define what type of conduct is acceptable, such as blogging on politics, and what is not acceptable, such as posting disparaging comments about the employer or posting racy or otherwise inappropriate pictures that would be frowned upon by employers.

Since New Jersey is an at-will employment state, an at-will employee may be terminated for good reasons, bad reasons, any reason or no reason at all, as long as the reason is not discriminatory.

If an employer learns of postings of an employee that it disagrees with, i.e., drunken pictures, derogatory, defamatory, racist or bigoted postings, an employer must have the right to take appropriate action.

However, such actions are not without limit.

If an employer disagrees with postings that reveal gender identity, sexual orientation or other immutable characteristics of an employee or prospective employee and an employer is not willing to accept such views, it will possibly face the penalties of anti-discrimination laws.

Further, such policies must be applied in a nondiscriminatory manner.

Basically an employer cannot only be trolling for female employees, or minority employees, etc.

Any such policy must be applied evenly and in a common-sense, non-discriminatory manner, otherwise employers will face court challenges.The clearest way for employers to shield themselves is to have a strongly worded Internet usage and communication policy that covers both at-work and out-of-work usage, including Web 2.0.

Thus an employer can show that an employee had notice of the employer's expectations and cannot say they were unaware that posts on Web 2.0 or pictures on the Internet could lead to negative employment action, up to and including termination.

But an Internet usage and communication policy alone is not sufficient.

Employers must be willing to utilize available resources, but use them with restraint and a common-sense view of right and wrong and a mindful eye towards the requirements of the anti-discrimination laws.

The one thing that is certain is that Web 2.0 will not go away and will encompass even more aspects of everyday life.

Therefore, employers will have to negotiate this potential landmine that blurs the distinction between private and public information cautiously, but expeditiously, starting now to fully protect their rights to govern their businesses as they deem appropriate.

FOR EMPLOYEESAll employees and prospective employees must be responsible for their image and postings on the Internet.

If employers are going to have the ability to see an employee's postings, an employee must exercise restraint.

If a prospective employee is applying for a job, make sure any questionable postings or pictures are removed.However, there are some postings that are not created by the employee.

In Facebook, a person can "tag" someone else in a picture and that is shown to the public.

Make sure to review your profile periodically for picture posts and if you are tagged in any questionable pictures, remove the tags.

I have had employer friends of mine indicate that if all is equal between two candidates, and one of the candidates has postings getting drunk, they will choose the other one who either does not post any information or at least is not posting information that would raise doubts for the employer regarding the employee's habits, actions and integrity.The converse is also true if an employee does not want an employer to learn about something they post, the answer is commonsensical, do not post it, do not blog it, do not tweet it and do not post a picture of it on the Internet.

If an employee would not say something to their employer in person, do not do it on the Internet.

An employee is generally hired at-will.

An employee should not give a reason for an employer to think of them in anything other than a professional manner.

CONCLUSIONIt will be the judicious and proactive employer that learns how to utilize Web 2.0 to shield itself from employees and prospective employees that do not provide the quality of work and character employers cherish, without infringing on the rights of the employee.

Likewise, it will be the judicious employees who tread with caution through this new, open expanse of the Internet, and use it in ways that do not expose themselves to unwanted scrutiny by their employers and prospective employers.

Until further guidance by the legislature or courts, both will have to use common sense to protect their interests.Jonathan S.

Goodgold is an attorney with Goodgold Law in Wayne, N.J.Post a Comment

http://www.law.com/jsp/ihc/PubArticleIHC.jsp?id=1202431741726&Web__and_the_Potential_Employment_Law_Pitfalls
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