Baer Business Law – Greater Philadelphia Area – Intellectual Property Law – Business Law – E Commerce – Contracts – Trademarks – Copyrights

Some bloggers are lauding a federal jury’s June 16 verdict in Pietrylo v. Hillstone Restaurant Group , Docket No. 2:06-cv-05754, as a landmark victory for employees’ online privacy rights, but this is actually an overstatement. Although the case holds lessons for employers about the risks of probing employee usage of social networking media outside of work, it does not create any new right of privacy.

In Pietrylo, a bartender at Houston’s Restaurant in Hackensack, New Jersey created a password-protected, invitation-only discussion forum on MySpace for employees to kvetch about the restaurant, company practices, the customers and anything else on their minds. The content of the postings was frequently derogatory and racy. However, the discussion group was created and maintained on the employees’ personal time and without using the employer’s computers or Internet access. A group member light-heartedly showed the discussion group page to a restaurant manager (not so bright move there), only to be asked the following week to provide her sign-in information to another manager. The second manager accessed the MySpace discussion group and was not amused. Pietrylo and a fellow server were told to take a hike.

The two employees then brought suit against Houston’s owners for wrongful termination, invasion of privacy and violations of the federal Electronic Stored Communications Act and New Jersey’s Wiretapping and Electronic Surveillance Control Act, among other things. The case was tried in the federal district court for the District of New Jersey. On June 16, the jury returned a verdict which found liability under the federal and state statutes, but rejected all of the plaintiffs’ other claims, including their claim for invasion of privacy (notably, the jury decided that the plaintiffs had no reasonable expectation of privacy in the online communications).

The result hinged, rather, on what was perceived to be unauthorized accessing by the employer of an invitation-only discussion group, access made possible as the result of a coercive request to turn over the sign-in information. Finding such behavior malicious, the jury concluded that the employer had unlawfully invaded protected electronic communications and awarded the plaintiffs $17,000 in back pay and punitive damages.

A limited victory for Pietrylo, to be sure. However, if the employer had not been so ham-handed, the result would probably have been different. For example, instead of accessing the discussion group directly, the restaurant manager could have asked a member to provide printouts or screenshots. Or it could have documented the hand-over of the sign-in information so as to dispel any suggestion of coercion. The case does NOT stand for the proposition that employees cannot be fired for criticizing their employer on their own time. (With that said, employers should still implement Internet posting policies specifically stating that employees have no expectation of privacy in commentary they post on blogs and social networking sites.)