Disparaging Comments on Web, Quirky Question # 14

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?

Dorsey’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.