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Remember That Post You Wrote About Me on MySpace? You're fired.




by:
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC - Memphis Office

 
September 1, 2009

Previously published on August 27, 2009

Employee gossip about workplace supervisors is as ancient as chatter around the water cooler. But the dynamics of workplace gossip have gone through massive changes since online social networking sites like MySpace and Facebook found their way into the workplace. In the case of Pietrylo v. Hillstone Restaurant Group, a federal jury in the United States District court for the District of New Jersey, Case No. 06-5754, sent a stern message to employers regarding social networking and its effect on the workplace.

On June 16, 2009, the Pietrylo jury rendered a verdict against Hillstone Restaurant Group, the operator of a Houston's restaurant in Hackensack, New Jersey. The case stemmed from a complaint filed by former servers Brian Pietrylo (Pietrylo) and Doreen Marino (Marino) against Hillstone.

During his employment with Houston's, Peietrylo created a group on the MySpace called "Spec-Tator." Members who were invited to join the group and accepted the invitation could read or add postings. In his initial post, Pietrylo wrote that the group's purpose was to vent about work without "any outside eyes spying," as the group was intended to be "entirely private" and could only be joined by invitation.

Some time after the formation of the group, Pietrylo invited a greeter from Houston's Restaurant, Karen St. Jean (St. Jean) to join Spec-Tator. St. Jean, in turn, accessed the MySpace group through her manager's home computer and showed the manager postings from Spec-Tator. The manager informed other managers of the existence of Spec-Tator and requested the Spec-Tator group password from St. Jean.

Spec-Tator's postings included sexual remarks about restaurant management and customers, jokes about customer service standards, and references to violence and illegal drug use. Members of management testified that they found the postings to be "offensive." Based on these postings, management subsequently fired Pietrylo and Marino, who responded by filing suit against Houston's asserting a number of causes of action.

The federal jury returned a verdict against Houston's for violating the federal Stored Communications Act and invasion of privacy. The jury awarded Pietrylo and Marino the maximum amount of back pay to which they were entitled, and the parties continue to argue about whether Pietrylo and Marino can recover their attorneys' fees under the Store Communications Act.

Pietrylo reminds us of the complexities involved in accessing employees' social networking sites, as well as that of using information obtained from social networking sites to discipline or terminate employees. While the jury award in Pietrylo was limited, other situations may warrant much larger jury verdicts. Employers should carefully consider the privacy concerns associated with obtaining information from social networking sites and weigh the potential benefits and liabilities in each case.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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