How far can employers go to access an employee’s restricted social networking profile? A case scheduled for trial next month in New Jersey’s federal district court may give employers and employees alike a better understanding of what it means to engage in “private” on-line social networking.

In March 2006, Brian Pietrylo, an employee at Houston’s Restaurant in Hackensack, New Jersey, created a discussion group about his workplace on his personal MySpace web page. He flagged the group as private and described its purpose as follows: to “talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in.” The group was accessible only by invitation. Those who accepted the invitation became members and could log on at any time.

One group member, a Houston’s hostess named Karen St. Jean, showed the discussion group to a manager during a dinner party. The circumstances underlying upper management’s access to the group are disputed, but all parties agree that another restaurant manager soon became aware of the group and asked St. Jean for her sign-in information, which she provided. Houston’s management found sexual comments about employees and customers, disparaging jokes about company practices, references to drugs and violence, as well as a copy of an employee wine test. Because of their findings, the restaurant terminated the employment of Pietrylo and another contributing employee, Doreen Marino.

Pietrylo and Marino sued Houston’s, alleging, among other things, that the company violated the federal Stored Communications Act and invaded their privacy. These claims hinge upon whether Ms. St. Jean (the hostess) voluntarily consented to management accessing her private discussion group account. Houston’s is expected to argue at trial that St. Jean’s consent was voluntary because she provided her log-in information, without complaint, on four separate occasions to three different Houston’s managers. Pietrylo and Marine are expected to rely on St. Jean’s testimony that she felt pressured to disclose her log-in information because she feared discipline for non-cooperation.

One takeaway for employers is that “private” may not be a hollow term when it comes to on-line social networking. Employers can argue that open blogging and unrestricted social networking posts are not private because they are available for public consumption. Password protected on-line content, however, may be a different animal.

Takeaway Number 2: Employers should recognize that if they rely upon an employee to provide sign-in information to access restricted accounts, they should do so without coercion and in a way that clarifies for the employee the nature and extent of the access granted. Employers who obtain written permission specifying the precise nature of the access granted may be able to avoid the type of courtroom battle that Houston’s will face next month.

This entry was written by Philip L. Gordon.