Firing a Registered Sex Offender, Quirky Question # 51
Quirky Question # 51:
We are a mid-sized technology company headquartered in California. We have twelve outside salespeople who travel three to four days a week. Typically, the outside salespeople visit our office about once a week. One of our employees in another department informed me that she had been searching the California sexual offender registry and found one of the outside salespeople on the website. She is very disturbed and upset by this information.
I checked the website myself, and sure enough, he was listed. Although she interacts very little with the outside salesperson, she was nonetheless very reluctant to continue working with this person and expressed concern about our company keeping him as an employee. What can I do? I’m afraid that if we keep him, the reporting employee will have some sort of hostile work environment claim. On the other hand, if we terminate the salesperson, are we also risking a lawsuit? Can we fire the outside salesperson based on this information?
[Set forth is another one of our California Quirky Questions. The analysis below was supplied by Jessica Linehan. Jessica, a 1999 graduate of the University of Southern California and a 2002 graduate of University of Southern California Law School, can be reached at 949.932.3675 or by email at linehan.jessica@dorsey.com.]
Jessica’s Analysis:
Your question implicates specific California law on this issue. By way of background, the federal statute enacted in 1996 known as “Megan’s Law” requires every state to create a registry for convicted sex offenders and make certain information about those offenders available to the public. This information is available online at sites such as http://www.meganslaw.ca.gov and www.Megans-law.net, and can be accessed by anyone at any time. Certain sites allow you to search by name or location, so it is inevitable that curious coworkers may sometimes unearth a hidden sex offender. When this happens, the employer is faced with numerous challenges that need to be addressed.
California’s version of Megan’s Law specifically prohibits use of information obtained on websites as to sex offenders in employment decisions, except in limited circumstances. Cal. Penal Code § 290.4(d)(2)(E). The statute provides that use is authorized only to “protect a person at risk.” See Id. at § (d)(1). The limited circumstances where use of such information is allowed is generally for particular lines of business involving minors, such as community care facilities or day care facilities. See id. at § (d)(3). If your line of business does not involve direct involvement with children that would qualify as “person at risk,” think twice about using information obtained from these websites in employment decisions.
Improper use of information disclosed on the sexual offender registries could subject employers to liability. California’s Megan’s Law expressly subjects misusers of such information to liability for actual, and trebled, damages, or a civil penalty not exceeding $25,000. Id. at § (d)(4)(A). In light of the Penal Code’s prohibition of use of the sex offender information found on the database, employers should be very careful to distance themselves from any perception that such information is being relied upon for purposes of an employment decision. An employer who terminates an employee based on its findings on the sexual offender registries also risks a claim of wrongful termination in violation of public policy. While there are currently no reported California cases advancing this theory, there is existing case law and authority that would provide the foundation for a wrongful termination claim on this basis. California case law has addressed the “compelling and necessary” public purposes for such registries, and have made clear that the legislative intent is not for the information to “be used to inflict . . . additional punishment on any such person convicted of a sexual offense.” See People v. Jones, 101 Cal. App. 4th 220 (2002); 89 Ops. Cal. Atty Gen 85 (April 27, 2006). Thus, your company would be restricted from terminating the employee your employee found listed on the sexual offender registry.
You also will need to be cognizant of the effect of the knowledge about this employee in the office environment. The employee who first discovered this information may not be inclined to keep it quiet, despite the statute’s restrictions on disclosure. To avoid the potential backlash against this employee, where other employees’ actions or reactions to this information could create problems (and potential liability for your firm), it is important to speak with both the employee who discovered the information and the employee sex offender.
With respect to the employee who discovered the information, you should counsel that employee as to the need for individual privacy and the laws that generally prohibit use of this information in the workplace. That way, you will be able to explain why action cannot necessarily be taken on the sole grounds of this discovery, while assuring your employee that her concerns are valid. You should also follow up periodically with the employee who voiced her discomfort to ensure that no worrisome behavior on the part of the sex offender employee has surfaced. Document each instance you follow up with the concerned employee and document her feedback as well. For the sex offender employee, you should be up front about the discovery. You should request that the reporting employee inform you of any inappropriate behavior he perceives from other employees and follow up periodically. Document your conversations.
Of course, it is always better to prevent this type of unfortunate situation in the first place by using effective pre-employment screening. An effective and thorough employment application can be the best starting place. While generalized inquiries as to arrests should be avoided, inquiries as to convictions, guilty pleas or pleas of no contest are generally valid. In addition, thorough background screening through reputable agencies is another tool to identify high risk individuals before hiring. Despite the many safeguards against use of information discovered on California’s Megan Law website, there are no such restrictions if the information were disclosed in the course of a properly-conducted background search. A person’s status as a sexual offender is not a protected class within the meaning of the California Fair Employment and Housing Act. See also 89 Ops. Cal. Atty. Gen. 85 (April 27, 2006). Note that such background checks must be conducted within the parameters of state and federal laws and have specific notice and disclosure requirements that must be followed. In addition, keep in mind that not all information unearthed in a background check may be used in employment decisions.
Supplement to QQ # 51, Terminating a Registered Sex Offender: In QQ # 51, my California colleague, Jessica Linehan, addressed the issue of a company’s right to terminate a registered sex offender. Shortly after we addressed this issue, a federal court in Texas decided a case involving the same legal questions. See Vlasek v. Wal-Mart Stores, Inc., No. H-07-0386 (S.D. Texas July 22, 2008).
In the Vlasek case, Wal-Mart received an anonymous letter and phone call informing the company that its employee, Vlasek, was a registered sex offender. Vlasek had not disclosed her criminal conviction or her status as a registered sex offender on her job application. Upon receiving the information regarding Vlasek’s status as a registered sex offender, Wal-Mart representatives met with her. Vlasek contended that various representations were made to her during this meeting, assuring her that her job with Wal-Mart was secure notwithstanding her prior, undisclosed criminal conduct. Not long after this meeting, however, Wal-Mart terminated her employment.
Vlasek brought several claims, including: a) promissory estoppel; b) disability discrimination; c) sex discrimination; and d) violations of the Fair Credit Reporting Act. The court rejected all of her claims. As to Vlasek’s promissory estoppel claim, the court noted that Vlasek was an at-will employee and nothing said to her in the meeting could alter that status. The court also found that Vlasek had not relied to her detriment on any statements made to her during the meeting with the store supervisors. With regard to the ADA claim, the court simply found that Vlasek did not have any mental or physical impairment covered by the ADA. As to the sex discrimination claim, the court held that Vlasek had failed to exhaust her administrative remedies. Finally, although the court recognized that there was non-compliance with FCRA, the court found that Vlasek would have been fired even if she had been given a copy of background report that contained information regarding her past conviction and her registration as a sex offender.
Firing An Employee for Having an Abortion, Quirky Question # 46
Quirky Question # 46:
We are a privately held company that runs a large software sales organization. The family that started our company and that still dominates its executive ranks has conservative values. Among those issues about which the owners feel strongly is the abortion issue. They do not believe that women should have abortions under any circumstances.
One of our employees who was pregnant recently learned that there were serious problems with her unborn child. Although her own life would not have been in jeopardy had she carried the child to term, her physicians recommended that she terminate the pregnancy. She and her husband agonized over this decision but decided to follow the medical recommendations.
I am the HR Director and I have now been instructed to terminate our employee’s employment. No explanation has been offered for why the company wants to discharge her. I do know, however, that she has not previously had any performance problems. To the contrary, she always has been highly regarded, a fact that is reflected in her glowing annual performance appraisals. Moreover, the discharge decision is not being motivated by any economic downturn. Our company is exceeding our year’s financial goals and no other employees are being laid off.
My instincts tell me the directive I have received is motivated by the fact that our employee decided to have an abortion, though no one specifically provided that explanation to me. Nevertheless, this directive just does not sit well with me. If I terminate her employment when she returns from the leave associated with the medical procedure and the funeral of her child, will I be exposing the company to risk?
Roy’s Analysis:
As I have stated in other Blog analyses, trust your instincts. Based on the facts you report, you would be exposing the company to risk. Terminating an employee because she had an abortion violates Title VII, and the Pregnancy Discrimination Act (PDA) contained therein.
Although this particular issue has not been litigated frequently, the federal courts that have examined this issue have held that is impermissible for an employer to terminate an employee because she elected to have an abortion. This analysis is supported by the legislative history of the PDA and the Equal Employment Opportunity Commission (EEOC), to which the courts often defer when adjudicating issues relating to employment law.
The PDA states, “the terms ‘because of sex’ or ‘on the basis of sex’ include but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 200e(k). The question, therefore, is whether an abortion is a “related medical condition” under the statute.
As referenced above, the EEOC has weighed in on this issue. The EEOC has stated that,
“The basic principle of the [PDA] is that women affected by pregnancy and related medical conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired . . . merely because she is pregnant or has had an abortion.” 29 C.F.R. pt. 1604 App. (1986).
The EEOC’s interpretation of the PDA also is consistent with the legislative history of the statute. “Because the [PDA] applies to all situations in which women are ‘affected by pregnancy, childbirth, and related medical conditions,’ its basic language covers women who chose to terminate their pregnancies. Thus, no employer may, for example, fire or refuse to hire a woman simply because she has exercised her right to have an abortion.” H.R. Conf. Rep. No. 95-1786 at 4 (1978), reprinted in 95th Cong. 2d Sess. 4,1978 U.S.C.C.A.N.4749, 4766.
In a very recent case from the Third Circuit Court of Appeals, Doe v. C.A.R.S Protection Plus, Inc., et al., Nos. 06-3625, 06-4508 (May 30, 2008), the appellate court analyzed these issues in light of the language of the PDA, its legislative history and the EEOC’s position, and stated, “We now hold that the term “related medical conditions” includes an abortion.”
The C.A.R.S case went up to the Third Circuit after the District Court granted the employer summary judgment on the plaintiff’s Title VII claim. The appellate court reversed.
The facts in C.A.R.S were straightforward. One of the company’s employees discovered that there were serious medical problems associated with her pregnancy. The employee learned her unborn child had severe deformities leading her physician to recommend the pregnancy be terminated. She and her husband evaluated the recommendation and elected to follow their physician’s advice. Because C.A.R.S had a miserly leave policy for its employees (the appellate court charitably described the leave policies as “less than compassionate”), which did not provide for any personal or sick leave and five days of vacation only after an employee had been employed for at least one year, the employee’s husband had kept the company apprised of his wife’s medical visits. He also requested leave time for his wife for the funeral and asked whether she could use her vacation week to grieve following the funeral. There was conflicting testimony about whether this request had been granted by the employer. But, there was no dispute that on the day of the funeral, the company packed up the employee’s personal belongings and terminated her employment.
The company attempted to demonstrate that its discharge decision was not discriminatory. Rather, the company argued, it was based on its policies prohibiting any personal or sick leave. The appellate court, however, found that those policies were not uniformly applied and that several male employees had been given time off for medical-related conditions (mental illness, heart attack, back problems, etc.). The evidence also demonstrated that there was no uniform policy regarding whether an employee was required to call in to the company to request time off for an illness.
Based on these facts, the appellate court found that Doe (the District Court agreed to allow the plaintiff to be identified anonymously) had made out a prima facie case of pregnancy discrimination. The Third Circuit also found that Doe had raised a fact issue as to whether the reasons articulated by C.A.R.S for its decision were pretextual. Here, the court pointed to some of the same evidence that had been used to establish the prima facie case, as well as a comment by Doe’s supervisor that the lower court had inappropriately treated as a “stray comment.” The appellate court also found that the temporal proximity between the employee’s decision to terminate her pregnancy and the company’s decision to discharge her was “unusually suggestive,” noting that temporal proximity alone may be sufficient to create an “inference of causality” sufficient to defeat summary judgment.
The Third Circuit sent the case back to the trial court for further proceedings. Assuming it is not resolved through settlement, the jury will have to decide whether the evidence supports the argument that Doe was fired because she elected to terminate her pregnancy or whether she was fired for “abandoning” her job, as alleged by the company. The underlying legal issue on which Doe’s case is grounded, however, has been resolved – it is a violation of Title VII and the PDA to terminate an employee because she elected to have an abortion. The task for the jury will be to make a factual determination regarding the employer’s true motivation for discharging the employee.
In the fact pattern presented in your question, you posit that you have been directed to terminate the employee who recently had an abortion. I suggest that you explore with your company’s management the underlying reasons for why they wish to terminate the employee. If they acknowledge that their motivation to discharge her is driven by her decision to have an abortion, you should explain that such a decision would constitute a violation of Title VII and the PDA. If they direct you to terminate her employment anyway, you have an ethical decision to make. Consider it in the broader context of whether you would engage in other illegal conduct simply because you supervisors directed you to do so. For example, if your boss told you to fire someone based on his race, age or other protected classification, would you do so?
Quirky Question # 29, Maintaining Electronic Records
Quirky Question # 29:
Our company has offices in California. This year we want to improve our document retention practices. We’ve decided to maintain electronic records of personnel files. Can we do this in California? We were told that California law requires the records to be available at the job site. If this is true, can we switch to an electronic database in California?
[Readers: Today we post another one of our California-specific analyses. The analysis below was prepared by Mandana Massoumi and Gabrielle Wirth of our firm's Irvine, California office. Gabrielle is a 1982 graduate of the University of California, Davis, School of Law, and Mandana is a 1987 graduate of the University of San Francisco School of Law. Their resumes are available on our firm's website at www.dorsey.com.]
Mandana’s and Gabrielle’s Analysis:
The California Labor Code, § 1198.5, specifically addresses the subject of your question. Under the Labor Code, a California employer is permitted to retain personnel files electronically. That right, however, is circumscribed somewhat, to ensure that employees are permitted access to their personnel files.
In short, you can switch to an electronic database. But, you have to make sure the records can be downloaded, stored on a disk, and maintained at your California location. California Labor Code Section § 1198.5 requires employers to permit an employee to inspect his or her personnel records. Inspection pursuant to this section must be allowed at “reasonable intervals and reasonable times.” (L.C. § 1198.5(b).)
Section 1198.5( c) requires the employer do one of the following:
(1) Keep a copy of each employee’s personnel records at the place where the employee reports to work.
(2) Make the employee’s personnel records, available at the place where the employee reports to work within a reasonable period of time following an employee’s request.
(3) Permit the employee to inspect the personnel records at the location where the employer stores the personnel records, with no loss of compensation to the employee.
L.C. § 1198.5(c) (emphasis added). Therefore, § 1198.5 permits the employer to keep the original personnel records at a location other than that were the employee reports to work, so long as a copy is available at the location where the employee works and can be made available for inspection upon request.
Subject to the provision in section (2) above, the employer is not required to make personnel records available immediately upon request. The California Department of Labor Relations, Division of Labor Standards Enforcement (“DLSE”) offered some guidance in its August 27, 1998 opinion letter on how soon such personnel records should be provided to an employee for inspection. (See Wage-Hour Opinion Letter No. 1998.08.27 (1998).)That letter reiterated the employers’ obligation to make records available to an employee within a “reasonable” time. The August 27, 1998 opinion explained that while reasonable attempts at a timely response must be made, there was no per se rule and would be subject to a “case by case” evaluation. The DLSE stated as follows:
“The Division has historically taken the position that the flexibility demanded by the clear language of this statute means that reasonableness can only be determined on a case by case basis. …
Other difficulties in setting any hard and fast rule on access to an employee’s personnel file would allow, for example, an out of state employee who maintains their personnel files in an out of state location, or one who has statewide operation and employee, but maintain their personnel files at a central location, to provide access to these files within a “reasonable period of time” after a request is made to inspect them by the employee. On the other hand, it would not be unreasonable to expect fairly immediate access to an employee’s personnel file maintained at the place where the employee works as required by statute, absent compelling reasons or unusual circumstances that the employer would have the burden of establishing.
In the event your constituent is denied access to their personnel files outside of these time parameters, or altogether, he or she may file a complaint with the nearest office of the Division of Labor Standards Enforcement.” (Emphasis added.)
In sum, the regulations permit employers to keep electronic copies of the personnel files. However, employers must ensure a copy (electronic or hard copy) is maintained and retrievable (to be printed in hard copy format upon request), at the location where the employee works in California.
A separate issue is what materials you wish to include in the electronic personnel records. When maintaining electronic copies of personnel files, we recommend that you consider segregating certain types of materials to ensure that they are not inadvertently produced when the personnel file materials are made available to the employee. For example, business records, confidential data, and privileged communications should be scrutinized carefully to assess whether any of this data belongs in the personnel file. Consideration also should be given to the retention periods that govern different types of documents. While certain types of documents have mandated retention periods, other materials (e.g., emails and other routine communications) do not and may be destroyed after a reasonable period of time. One potential problem with maintaining materials electronically is that you may find yourself retaining documents that could be (and should be) disposed of. Therefore, if you elect to maintain electronic personnel files, you may want to conduct periodic file reviews to cull information that no longer needs to be retained.
Employee Cooperation in Investigations, Quirky Question # 9
Quirky Question # 9:
Two of our employees are involved in a romantic relationship. We recently learned that our male employee assaulted our female employee at her apartment. He was charged with domestic assault based on her report and convicted.
We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers. She refused to answer our questions, claiming they invaded her privacy. We do have a policy that requires cooperation with our investigations. What options do we have? Can we fire her for refusing to assist in our investigation?
Roy’s Analysis:
Your questions implicate difficult issues that highlight the tension between the competing interests of employers to provide a safe, violence-free work environment, and employees’ legitimate privacy interests. Here, the interests of the employer predominate.
Every employer has a duty to attempt to provide a safe work environment. While all risks cannot be anticipated, known risks cannot be ignored.
Consider, for example, the potential consequences of a “do-nothing” approach. If the male employee escalated the violence towards his significant other, and committed a violent crime against her in the workplace (or anyone else who intervened, or who just happened to be an innocent bystander), it would be extremely difficult to justify the company’s lackadaisical response, particularly if the injuries suffered by your female employee or your other workers were serious. Defending a lawsuit by your other injured employees (or their families in the event of a death), would be difficult, at best.
Given this potential, it is imperative that you attempt to gather additional information from the employee involved to enable the company to assess the risk and, if necessary, take appropriate precautions. Even in the absence of a company policy requiring cooperation in company investigations, your firm would be justified in exploring these issues thoroughly with the female employee. Since your company has a specific policy requiring cooperation, your firm’s position is even stronger.
If your employee refuses to cooperate in the investigation, you could impose any discipline you deem appropriate, including discharge. I would not advocate jumping to that ultimate sanction. Rather, I would explain to her that a failure to cooperate jeopardizes her continued employment. I also would explain why the company needs to explore these issues, both from a practical and legal perspective. If she nevertheless refuses to reveal any of the information that you consider necessary to evaluate the situation accurately, you could impose a progressive disciplinary approach, starting with suspension with pay, then suspension without pay, and finally termination. But, again, you need not pursue a progressive disciplinary approach if you have concluded that discharge is the appropriate response to this situation.
The fact pattern you describe is very similar to a case decided by the United States District Court for the Northern District of Ohio in late 2005, Rowe v. Guardian Automotive Products, Inc., 2005 WL 3299766 (N.D. Ohio). In Rowe, like the situation you describe, two employees were living together. The male employee assaulted the female employee, breaking three of her ribs. The male employee was charged with assault and convicted. This information came to the company’s attention when the male employee later received a 30-day jail sentence for driving without a license. When the company explored the situation, it discovered the male employee had a lengthy criminal history involving alcohol abuse, threats to kill his ex-wife, physical acts of violence against his ex-wife, and the assault on Rowe. Based on this history of violence, the company terminated the male employee. The company also tried to obtain additional information directly from Rowe to ascertain whether the now-ex-employee posed a risk of harm to her, her co-workers, or her supervisor.
On three separate occasions, the company tried to elicit this information from Rowe and each time she refused to cooperate, arguing that the inquiries invaded her privacy. She pointed out that she was on leave when the assault occurred and that it had not occurred at work. Despite those facts, the company terminated her employment based on her refusal to cooperate with the company’s legitimate investigation. The federal District Court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment.
The bottom line is that employers have an obligation to attempt to create a safe, violence-free working environment. If an employee refuses to support that effort by refusing to participate in an investigation bearing upon this issue, the employer is justified in discharging that employee.
Readers’ Responses:
I think it’s worth highlighting that in both the question and the cited case, the Company had a policy in place that required employees to participate in the investigatory process. Therefore, the employee should understand she is being approached consistent with the normal practices of the Company. I also believe it behooves the Company to articulate to the female employee one or more reasons to pursue the investigation that may make her feel uncomfortable. For example, if there is enough evidence (as appears to be the case in both instances) to terminate the male employee without the female’s input, she might naturally feel the investigation (and her part in it) is unnecessary. Therefore, having someone from the Company articulate the Company’s concerns about retaliatory acts by the male or other potential targets at the Company might enable the female employee to understand the Company is not merely voyeuristically interested in what she may perceive as a personal matter. Finally, in the cited case, the female was given numerous opportunities to comply with the Company’s investigation. This appears to be a prudent course of action where the female employee may be initially reluctant to speak — whether it be to “protect” the male or because she does not want to “relive” a traumatic experience.
Follow
Disparaging Comments on Web, Quirky Question # 14
Posted by Roy Ginsburg on December 24, 2007 · Leave a Comment
Quirky Question # 14:
One of our employees discovered fortuitously (by Googling his own name) that a co-worker down the hall has been posting messages to a Web-blog, in which he identified the employee by name and made graphic, negative sexual observations about him. Not surprisingly, the two employees are not friends. The subject of the comments had no idea that this conduct was going on and is worried about how these comments already have or will affect his reputation (both within the company and outside of it).
We intend to terminate the employee who placed the comments on the Blog. Are there any risks associated with that discharge? We also wonder what actions, if any, the company should take vis-’a-vis the employee about whom the comments were made? Does that employee have any legal rights that could be asserted against either the company or the employee we expect to terminate?
Roy’s Analysis:
Your questions illustrate how changing technology, and the introduction of that technology into the workplace, generate new and unusual questions for the human resources professional.
First, I recommend that every employer, including your firm, have in place a written policy governing your employees’ use of your computer network and use of the Internet. Three essential provisions of such a policy are: a) your company owns the computer equipment to which your employees are provided access and/or which they are furnished to perform their job responsibilities; b) your employees should have no expectation of privacy in anything they send or receive via the company’s computer systems, and that your company reserves the right and sole discretion to monitor, with or without notice to the employees, everything they send and receive; and c) certain uses are prohibited – e.g. sending anything that is sexually explicit, offensive, or defamatory, or that reveals confidential, proprietary or trade secret information belonging to your company or its customers. Especially with such a policy in place, there should be little risk associated with terminating the employee who disregards these proscriptions.
Second, even if your company does not (yet) have such a policy governing computer use, you have legitimate bases for discharging the employee. Although you have not disclosed the precise comments that were included in the Web-blog, I’ll assume that it was both sexually explicit and offensive. As such, I have little doubt that the statements violate your sexual harassment policy. In my view, the fact that the statements were made on the Web, rather than in the office itself, makes little difference. Indeed, one could make the argument that publicizing the statements on the Web is far worse than making the statements to a few colleagues in the office.
Third, even without the sexual harassment angle, your firm has a sound basis for terminating the employee. Consider how your company would have reacted had the comments been expressed in a company meeting, posted on a company bulletin board, or communicated to a small group of co-workers. The fact that the offending employee chose to use a modern telecommunications medium should not alter the analysis. The comments not only are guaranteed to create an awkward (if not unworkable) situation between the two employees, they also may poison the offending employee’s ability to work with others. Who, for example, will want to work with the employee who posted the comments if they are fearful that he might treat them in the same way? Even if they were not concerned that he will make comparable comments about them, you have the “creep” factor to consider. Will anyone want to work with a co-worker who has posted graphic sexual information about another one of your employees?
Fourth, as for the unwilling subject of the Blog, I would express sympathy for his plight. I also would apprise him of the company’s decision to terminate the offending employee (following an appropriate investigation). You might even take advantage of these circumstances to remind all of your employees of your company’s policy regarding use of your company’s computer systems, explaining that disregard of the policies may result in termination. You also might offer to provide any assistance to the employee in efforts he makes to have the information removed from the Web-blog.
Beyond those steps, however, I would be circumspect about taking other actions, at least not without the input and express approval of the adversely affected employee. For example, if the specific circumstances were addressed publicly within your company, this might simply draw more attention to the information set forth on the Blog and cause your remaining employee further discomfort or embarrassment.
Finally, you have inquired about whether the person about whom the Blog was written might have legal recourse against his co-worker. He may. Many states, including Minnesota, have recognized causes of action for invasion of privacy, which includes the concept of “publication of private facts.” This legal theory is grounded on the notion that certain private information about an individual deserves to remain private. Your employee also may have a claim for defamation, depending on the nature, content and falsity of the statements made. Lastly, your employee may have rights under state telecommunications laws.
I would not recommend that the company become involved in providing advice to this employee on his legal options against his co-worker. If he wishes to pursue that avenue, he can do so with the help and guidance of private counsel.
Filed under Defamation, Discharge, Discipline, Disparaging Comments, Sexual Harassment · Tagged with