Defeating Liability For Employees' Off-Duty Internet Activity

Posted on November 30, 2009 by Privacy and Data Protection Practice Group

Sometimes cases with disgusting facts provide good law for employers. A case recently decided by the Wisconsin Court of Appeals proved that point in reversing a $1.4 million judgment on claims for negligent training and supervision against a security company based on the off-duty Internet activities of one of its employees.

As security manager at a Polaris Industries facility, Troy Schmidt an employee of Polaris’ security provider, was responsible for creating identification badges of Polaris employees using photographs stored on a Polaris database. Schmidt copied the photographs of approximately thirty, female Polaris employees to a flash drive, printed them at home, ejaculated on them, and posted the adulterated photographs on an adult website that he created through Yahoo!.

Polaris promptly took control of the efforts to reverse the harmful effects of Schmidt’s bizarre conduct. Polaris took the following steps:

  • Investigated and determined that Schmidt was the likely perpetrator;
  • Contacted Yahoo! to request the removal of the photographs;
  • Met with Schmidt and obtained his admission to the conduct;
  • Obtained Schmidt’s agreement to de-activate the website;
  • Obtained confirmation from Yahoo! that Schmidt had de-activated the website;
  • Met with police personnel (who declined to prosecute).

After learning of the matter from Polaris, Schmidt’s employer, the security company, offered to provide assistance, participated in the interview of Schmidt, and fired him shortly after hearing his admission. Notably, the ten plaintiffs sued only the security company and not Polaris.

In reversing the large judgment against the security company, the Wisconsin Court of Appeals pronounced a rule that should provide a measure of relief for all employers: “[E]mployers have no duty to supervise employees' private conduct or to persistently scan the world wide web to ferret out potential employee misconduct.”

Beyond that pronouncement, the court emphasized several other factors. Schmidt’s conduct was “bizarre and unexpected,” indeed “unimaginable.” The security company had trained Schmidt in sexual harassment, employee theft, and his duty to comply with Polaris’ computer usage policy. The security company had no reason to know that Schmidt might engage in Internet abuse. The security company cooperated in Polaris’ response to the incident to the extent permitted by Polaris.

The court’s rejection of a duty to monitor employees’ off-duty Internet activities appears to provide employers with an unbeatable defense in cases like this one. Still, the result might have been different had Schmidt’s employer not provided training, or if Polaris and the security company had not acted promptly once the offending conduct became known. Consequently, when there is a tight nexus between an employee’s job duties and an employee’s off-duty Internet abuse, employers should consider taking some of the proactive measures that Polaris and the security company took. Such measures might not only help to defeat liability but prevent the filing of a lawsuit in the first place.

This entry was written by Philip L. Gordon.

Photo Credit: Matthew Bowden
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First Federal Court Decision to Uphold "Termination" Based on MySpace Content Rejects First Amendment Claim of the "Drunken Pirate"

Posted on December 8, 2008 by Philip Gordon

Student teacher Stacey Snyder lost her chance to earn a teaching certificate largely because of content that she posted on her MySpace page. The page included a picture of Snyder, captioned “Drunken Pirate,” in which, according to Snyder’s trial testimony, she wore a pirate’s hat, was drinking a “mixed beverage,” and had a “stupid expression on my face . . . giving the peace sign . . . expressing myself at the moment, basically peace, love happiness . . . .” The page also contained a post in which Snyder implied that the teacher who was supervising Snyder’s participation in the student teacher program, Nicole Reinking, was the reason that Snyder would not apply for a job at Conestoga Valley (CV) High School in Pennsylvania after completing the program.

Unfortunately for Snyder, a CV High teacher viewed the picture and the post and gave a copy of both to Reinking. Reinking, who had not been pleased with Snyder’s performance even before receiving the MySpace content, promptly complained to her supervisor who, in turn, brought the MySpace content to the attention of the school’s superintendent. He suspended Snyder from the student teacher program. In her final evaluation from Reinking and from her supervisor at Millersville University — where Snyder was pursuing her teaching certificate — Snyder received an “unsatisfactory” rating for “professionalism.” That rating disqualified Snyder from earning a teaching certificate.

Snyder sued Millersville University in federal district court in Philadelphia, alleging that the university had violated her First Amendment rights by denying the teaching certificate based largely on the MySpace content. In what appears to be the first published decision addressing an adverse action (at least akin to an adverse employment action) based upon content on a social networking site, the court, after a two-day bench trial, rejected Snyder’s First Amendment claim and denied Snyder’s request for an order compelling Millersville University to award her a teaching certificate.

The decision is important for private employers, but not because of its legal underpinnings, which turned largely on legal issues that are irrelevant to the private workplace (i.e., state regulations applicable to student teachers and First Amendment jurisprudence concerning speech by public employees and students at public schools). While the applicable legal framework created substantial obstacles, the more significant problem for Snyder (apparent to any experienced trial lawyer reading between the lines of a carefully crafted opinion) was the unsympathetic posture of her factual position.

The fundamental problem with Snyder’s case from a dynamic perspective was her failure to heed the university’s and Reinking’s warnings about social networking. The court made a point of emphasizing the following facts in its decision:

  • At the orientation for the student teacher program, university officials “cautioned the student teachers not to refer to any students or teachers on their personal webpages.”
  • One university official recounted at the orientation a “student teacher’s dismissal from his practicum after he had posted information about his Cooperating School on his personal webpage.”
  • Reinking warned the plaintiff that it was not proper to discuss her MySpace account with the students.

In short, Snyder had fair warning and posted the troublesome MySpace content at her peril.

The lesson for private employers could not be clearer. Provide employees with fair warning, through a written policy, of the on-line, social networking conduct that is a “firing offense.” If the employer ever is called upon to defend that decision at trial, the policy will go a long way towards tilting the factual dynamics of the case in the employer’s favor.
 
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