If you’ve thought about firing employees for things they post to
social media websites, a recent decision by a federal jury sends a
clear message that you should think again.
A waiter employed by Hillsides Restaurant Group, a national company
that owns and runs five restaurants in California, set up a MySpace
group where he and his coworkers could complain and gossip about their
jobs, their managers, and their customers by posting messages that only
the group’s invited members could read. Only employees were invited to
join the group. Comments posted to the group included derogatory,
sexual, and downright mean statements about some of the company’s
managers.
One of the employees showed the MySpace group’s postings to her
manager, who in turn showed the messages to other company managers. The
waiter who created the group and another employee were then fired
because of the messages they posted.
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The employees filed a lawsuit, claiming that the company violated
both their privacy and the federal Stored Communications Act (which
makes it unlawful for any person to access stored electronic
communications without authorization). Although this particular case
was filed in federal court in New Jersey, the federal jury’s decision
was based on federal law that applies to employers in every state,
including California.
The jury agreed with the employees, finding that the employees had
an expectation of privacy with respect to the messages they posted,
since the messages were intended for employees’ eyes only. The jury
also found that that Hillsides’ managers were not authorized to access
the group’s messages, and therefore could not legally terminate the
employees as a result of information obtained illegally. The employees
were awarded back pay and related penalties.