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My Space in your space: Publication and privacy in the workplace

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Ellen Simonetti, a flight attendant for Delta Airlines, creates "Diary of a Flight Attendant," a blog where she posts revealing pictures of herself in uniform.

Mark Jen, a blogger at Microsoft, posts the notice: "It looks like somebody over in Microsoft-land is getting some new toys" - underneath is a photo of Apple Power Mac G5 computers being unloaded at Microsoft's campus.

Teenagers publish photos of themselves drunk and half-dressed on Facebook's "30 Reasons Why Girls Should Call It A Night."

These and countless other electronic communications have far-ranging consequences, often unintended. Simonetti was terminated when Delta discovered her uniformed escapades; Microsoft (Nasdaq: MSFT) likewise fired Jen. Query whether the adolescent postings on Facebook will be viewed by prospective employers in years to come and prevent those "girls gone wild" from getting certain jobs at all. More than one company has withdrawn job offers after viewing risqué or controversial postings by applicants.

The above actions were "purposely public." Others are inadvertent. These days we hear the most private of telephone conversations on trains, in restaurants, even in public restrooms. You have likely heard the details of divorces, medical treatments, lawyers' legal strategies and "confidential" business discussions in these and other venues. Log on to the Internet and you may unwittingly view intimate family photos of a stranger or read the details of his honeymoon trip. Back at the office, employees freely exchange unguarded e-mails, zap photos in and out of the workplace and otherwise promote their personal agendas in cyberspace.

"My Space" has thus come to your space -- the work space -- creating tensions between free speech, privacy and employer property rights in their electronic communications.

While individuals may no longer have any sense of decorum, many businesses do. The question then becomes what can employers do to regulate employee conduct that may bear upon the reputation of the business.

Social networking sites and blogs are part of the employee's private, non-work life. But information posted on the Internet or sent through the employer's computer system is not private. It is available to the employer, workers, customers, government regulators and law enforcement. Some employers may decide not to regulate employee cyber-conduct at all, leaving themselves vulnerable to vindictive workers, inadvertent disclosures of business secrets or worse. Others may decide to closely monitor not only workplace communications systems for misuse, but also "public communications," where information about the company or the employee may appear.

Private sector employers generally have broad discretion to regulate and terminate at-will employees, but their discretion may be limited when it comes to disciplining employees for certain activities.

Some states, including California, limit an employer's right to terminate an employee on the basis of off-duty activity. Thus, a California employer cannot discharge an employee for lawful conduct occurring during non-working hours away from the employer's premises (Cal. Labor Code §§ 96(k) & 98.6). California courts have interpreted these sections, however, to apply only to an employee's assertion of recognized constitutional rights. See Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 86 (2004), in which the court held that an employee must assert a recognized constitutional right in order to successfully establish a claim under Labor Code § 98.6. See also Schmidt v. Superior Court, 43 Cal. 3d 1060 (1987), in which the court noted that California's right to privacy, although similar to federal privacy protection, extends protection to nongovernmental intrusion. But while the California Constitution provides for a right of privacy (Cal. Constitution Article I § 1), it is unlikely that an employee would succeed under an invasion of privacy argument when the adverse employment action is based on "private" activities appearing in a public forum such as Facebook or MySpace.

Still, the content of the employee's publications can limit an employer's ability to take action. For example, California Labor Code prohibits an employer from interfering with their employees' political activities (Cal. Labor Code 1101 and 1102). If the information discovered about an employee is connected to political activity, such as a blog containing political commentary, an employee may be protected from adverse action by the employer. Id. See also Gay Law Students Ass'n v. Pacific Telephone and Telegraph, 24 Cal. 3d 458, 487 (1979), defining political activity broadly to include espousal of "a cause" and some degree of action to promote its acceptance.

California law also prohibits the discharge of a whistleblower as a matter of public policy. Thus, if information posted by the employee alleges discriminatory acts or corporate fraud, an employer who fires the employee on the basis of that posting could face a retaliation claim under either state or federal law (See 42 U.S.C.S. § 2000e-3(a), Title VII retaliation prohibited; 18 U.S.C. § 1514A, Sarbanes-Oxley Act protecting employees who disclose shareholder fraud.)

Employers seeking to contain employee communications should first make clear that business communications systems - e-mail, voicemail, blackberries, etc. -- belong to the company. Despite their passwords, employees should understand these are the company's tools, not their personal toys. They should not expect privacy in such systems. If the employer plans to monitor communications systems for misuse -- whether for personal use, improper business disclosures, or negative comments about the company -- say so.

But outside conduct unrelated to the company's own systems, if monitored for either applicants or employees, must be handled carefully. Monitoring could result in discrimination claims if not dealt with uniformly. And if the monitoring implicates free speech or intrudes on genuinely private -- as opposed to public -- conduct, the rights of the employee or applicant might be compromised.

One thing is clear: "My Space" has entered your space. Proceed with caution.

Dollarhide chairs the Employment Department at Paul Hastings in San Diego. She was recently named among the Top 25 Women Lawyers in San Diego County.

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