Technology is everywhere, it’s misunderstood, and it creates a lot of problems for HR managers, not the least of which is an annoying new one–cyberslander. Today’s expert sorts out the challenges.
These days, we seem to live on our e-mail, instant messaging, voice mail, Internet, intranet, extranet, cell phone, BlackBerry®, and blogs, says Attorney Matthew S. Effland of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., in Indianapolis, speaking at a recent SHRM convention.
But, unfortunately, there are going to be people in your organization who abuse that technology. They are going to send e-mails of the wrong nature, access sites they shouldn’t, or simply waste the day surfing and IMing for purposes unrelated to their jobs.
And maybe, posting some cyberslander while they are at it.
Digital Defamation or ‘Cyberslander’
“Cyberslander” refers to attacks against a person or company on the Internet. It generally occurs when, in an online forum, chat room, or blog, anonymous posters make defamatory statements that are tough to trace. Another variation is when they give up trade secrets, salaries, or other sensitive data.
Effland says that there are three problems that make it hard to control:
Problem #1: The poster is often anonymous.
Posters usually use a “screen name” to mask their identity. If they do it enough, you can often figure out who they are. (An employee, for example, might mention info only an insider could know, such as names of co-workers, building locations, and so on.) But it’s still tough to prove who they are well enough to maintain a lawsuit.
Fortunately, your job descriptions are already written and keyed onto CD format. Thousands of HR managers have depended on the print version of this product–now they’re flocking to get SmartJobs on CD! Try it at no cost or risk. Click for info
Problem #2: ISPs protect their customers.
One way to deal with the anonymity issue is to file “John/Jane Doe” lawsuits—where you admit not knowing who the perpetrator is, and then subpoena the Internet Service Provider (ISP) to tell you.
But ISPs have built their businesses on confidentiality, so there is generally no response to the subpoena. You can get a motion to compel, but they will still ignore you. You can then seek to cite them for court for contempt, but they can drag that out also, until you’ve spent 18 months of wrangling just to get a name.
More than 500 prewritten, legally reviewed job descriptions ready at the click of your mouse. Use as is, or easily modify, save, and print. Pay grades already included. Try BLR’s remarkable SmartJobs program at no cost. Click to learn more
Problem #3: Courts are all over map, literally and figuratively, on the issue
For example, in Delaware, employers must show a prima facie case of defamation, including damages, to obtain information on cyberslanderers. In New Jersey, there is a strong first amendment right to “speak anonymously.” In Pennsylvania, companies are entitled to learn the identities of defamers upon basic showing of evidence.
But in New York, employers may only discover identities after they show that no alternative means of discovery exist.
What to do about cyberslander? In tomorrow’s Advisor, we’ll feature Effland’s tips for dealing with the practice, and offer help for a key HR challenge at the other end of the technological spectrum–job descriptions.
All Employee Handbooks should explicitly include a section against defamation against co-workers by any means transmitted, including but not limited to the electronic media at the disposal of anyone with a laptop, PC, cell-phone, PDA, or Blackberry, and that the company’s mandated policies against harassment, discrimination, retaliation, workplace violence proscribe misconduct however it is communicated
How I miss my days in the law office! How I miss the law!!!
We have three people in the recruiting industry who seem to have taken a personal vow to defame. One of those three has sworn to ruin my name to the extent that no HR pro would want to use my name for a cleaning rag. Some in the recruiting industry say simply ignore these people. Unfortunately, they manage to bring just enough credibility to a conversation (usually because of statements that curve and zig to unfounded information of mix and match truth cf. manufactured) that their statements seem to have validity. I say simply tune them out and turn them out of the group.
As to responding to the notice to produce, it cannot be ignored. Opposing counsel (if they’re on top of their job) will serve a motion to compel and get an order if the response is not made in a timely fashion. As my crim prof lectured, when law enforcement folk show up on your doorstep, give them what they want; then let Legal get involved. But first, give law enforcement what they want.
[God! That felt good!!!]
Here’s an interesting article (the source is free to join)
Burger King Fires Employees over Web Postings
May 14, 2008 (PLANSPONSOR.com) – Burger King on Tuesday announced it fired two employees following the disclosure of Internet activity regarding the company’s issues with a farmworker advocacy group.
The Associated Press reports the company also said it is discontinuing the use of a private investigation firm whose president allegedly posed as a student activist to infiltrate the farmworker group and its supporters. Burger King is in discussions with the Coalition of Immokalee Workers over how to improve wages and working conditions for Florida’s tomato pickers.
“Following an investigation, Burger King Corporation has terminated two employees who participated in unauthorized activity on public Web sites which did not reflect the company’s views and which were in violation of company policy,” the company said in a statement, according to the AP.