A case brewing in federal court in New Jersey pits bosses against two employees who were complaining about their workplace on an invite-only discussion group on MySpace.com, a social-networking site owned by News Corp., publisher of The Wall Street Journal. The case tests whether a supervisor who managed to log into the forum — and then fired employees who badmouthed supervisors and customers there — had the right to do so.
The case has some legal and privacy experts concerned that companies are intruding into areas that their employees had considered off limits.
“The question is whether employees have a right to privacy in their non-work-created communications with each other. And I would think the answer is that they do,” said Floyd Abrams, a First Amendment expert and partner at Cahill Gordon & Reindel LLP in New York.
Employees can pop into each others offices or cubicles and mutter under their breath about the boss. They can huddle together in the kitchen during lunch and complain about working conditions. They can commiserate on smoking breaks about unfair expectations, rude coworkers and.. well, you get the idea.
Given the power of new communications technologies, employers have to expect their workers to bring their conversations online. And given that workers will complain online, employers should consider themselves lucky if their employees are responsible enough to keep those complaints from the public. Yes, communicating complaints to the entire workforce is different from small groups complaining to each other during breaks. But it is simply unrealistic to expect workers not to use the communication tools they are increasingly used to and comfortable with.
Instead of reacting to perceived violations by employees, organizations need get in front of these problems. They need policies in place that recognize the value of online communications tools but keep that communication within the organization, protected from the public. They may even need to provide the platform where workers can complain and issues can be discussed in a productive way. Every organization will have its own needs.
But it is sadly out of date to expect workers to keep their complaints to offline water-cooler conversations when they have such powerful communication tools at their fingertips.