Last October, the federal district court in New Jersey upheld a jury decision to hold Hillstone Restaurant Group liable for violations of the Stored Communications Act and New Jersey’s parallel electronic surveillance statute after managers of the restaurant fired two employees due to content the Managers found in a private MySpace group created by the employees.1
The two employees created the MySpace group to discuss their thoughts of the employer in a password protected environment and invited other employees — but not managers — to join. When Managers learned of the group, they asked an employee for access, and read the contents of the private group pages. In those pages, the Managers found negative remarks about the restaurant’s customer service and quality guidelines, references to violence and illegal drug use, and a copy of the new wine exam that would be administered to employees. After reading the content, managers then fired two employees.2
The employee who gave the login information to the Managers was not one of the group’s creators, and she testified that she felt pressure to surrender the information. As a result, the court concluded that the Managers did not have permission to enter the site.
When the suit was originally filed, the plaintiffs charged that the Managers violated the Federal Wiretap Act, New Jersey Wiretap Act, Federal and State Stored Communications Act, along with Invasion of Privacy and Wrongful termination. Some of these statutes carry imprisonment in their potential punishments.
As you think about the policies and guidance you give your employees, provide specific guidance to managers, with the following considerations:
- In the absence of reliable evidence that an employee is damaging the employer’s interests or violating company policies, avoid password-protected sites or accounts used by employees.
- If you believe that you must seek access to a secured site or account, first consult your lawyer to ensure that your actions are appropriate.
 Thanks to John H. Douglas of Foley & Lardner LLP for educating me about this case.
 Source: Pietrylo v. Hillstone Restaurant (2008)