Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

Some companies, like on-line retailer Zappos.com, are sponsoring corporate twitter sites. What is “twitter”? According to Twitter.com, “Twitter” is “a service for friends, family, and co–workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: “What are you doing?” A review of Zappos’ twitter site suggests the answer to that question rarely is “working.” Are Zappos employees unwittingly creating the justification for terminating their employment, or has Zappos—in an effort to foster unrestrained twittering—assured its employees that their “twittering” would not be used against them in a court of law?

We don’t know the answer to those questions, but we do know that any employer seeking to cater to the “Twitterites” in its workforce should first consider some tough legal issues. How will the company react when an employee twitters that she is “organizing a union” or “complaining to her buddies about all that overtime”? Would a Twitterite ever be so frank or uncool? How does a business respond to a Twitter record that, in fact, does show that an employee seems always to be doing something other than work during working hours? Twitter actually is quite good for identifying slackers because each Twitter post includes the date and time of posting. Yet this begs another question: How will the company extend a “litigation hold” to Twitter after receiving a preservation demand from a sophisticated plaintiff’s lawyer who specifically identifies "Twitter" as one category of information that purportedly must be preserved?

The point of this post is not to provide answers, but rather to highlight that each new generation of “cool corporate communications tools” brings some tough legal issues to the forefront. Those issues should be thoroughly discussed before an employer rushes headlong into an embrace of the next new thing.

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Our last blog entry discussed the First Amendment shield that covers current and former employees who use anonymous or pseudonymous Internet postings to trash their employers. Today’s cautionary tale highlights the practical challenges employers face in court even when a current or former employee posts confidential records on the Web in violation of confidentiality agreements and laws.

Bank Julius Baer & Co., a Cayman Island subsidiary of a Swiss bank, fired a disgruntled vice president. On her way out, she took confidential documents she believed show that her former employer engaged in unlawful conduct. The next day, she posted those documents on a public website devoted to leaking confidential documents.

Instead of pursuing the disgruntled vice president, the Bank filed a lawsuit seeking to enjoin the leaking website, Wikileaks.org, and its domain name registrar, Dynadot. The Wikileaks website enables users to anonymously publish submissions, including alleged confidential corporate and government documents. The site aims to be an “untraceable version of Wikipedia for untraceable mass document leaking and analysis.” The site runs on modified MediaWiki software, similar to the software that runs Wikipedia.

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Certain provisions of employer policies governing the use of electronic resources have become mantra:  “Employees should have no expectation of privacy in their e-mail or Internet use”; “Employer reserves the right to access, monitor, and review any communication sent or received using corporate communications resources”; “Corporate communications resources can not be used to send or receive harassing, pornographic, or offensive messages,” etc.  But, employers who do not want their policies to become anachronistic should review and update those policies regularly to stay abreast of new technologies and new uses of technologies flooding the workplace as well as recent developments in pertinent case law.  Here are a few changes to consider.  We will follow with more in future blog entries:

            Blogging:  Blogging by employees is common.  With more than 70 million blogs on the World Wide Web and nearly 1.4 million new blog entries daily, employers need to consider the impact that employee blogging may have on their business and workplace.  Employers who do not endorse blogging should consider adding to their electronic resources policy a provision which bars employees from using corporate communications resources to view or post to any blog that is unrelated to work.  Employers also should consider a separate blogging policy to address off-duty blogging on the employee’s own time. 

            Video In The Workplace:  That employee who has spent the last three hours glued to her computer monitor without pause may be watching Gone With The Wind.  According to a recent Pew Foundation study, 57% of online adults have used the Internet to watch or download video, and 19% do so on a typical day.  Three-quarters of broadband users (74%) who enjoy high-speed connections at both home and work watch or download video online.  Employers who do not currently prohibit viewing or downloading video unrelated to work should now consider doing so before “bandwidth hogs” interfere with business operations.

            Web-Based E-Mail:  According to a report in the New York Times earlier this year, employees frequently rely on their personal Web-based e-mail accounts to conduct business or to store business-related material.  This trend raises a host of issues for employers including the inability to monitor the messages, if necessary, and the difficulty of preserving the messages as part of the litigation hold process.  Employers should consider barring employees from using personal Web-based e-mail for business purposes.

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