Caution For Employers Regulating Employee's Internet Activity

Recently, the National Labor Relations Board sued American Medical Response of Connecticut Inc. (AMR) on behalf of an employee who was fired for making negative comments about AMR on the Internet. The NLRB argued that the conduct of the employee was protected as free speech under federal labor laws. The NLRB settled the case with AMR.  In addition to paying a confidential settlement to the employee, the company has also agreed to change its blogging and Internet policy so that it no longer prohibits employees from disparaging the company or depicting the company in any way without prior approval from the company. While this case involves federal labor laws, the settlement should be a warning to California employers who have similar Internet prohibitions as California law provides that employers cannot restrict an employee’s legal off-work activities.

First off, in California, Article I, Section I of the California Constitution guarantees citizens a right of privacy:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

This right to privacy carries over to the workplace, but is even more protected when the employee is conducting personal activities during non-working hours. Furthermore, section 96(k) of the Labor Code provides that the California Labor Commissioner may assert on behalf of employees:

Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

For example, in Barbee v. Household Automotive Finance Corp. (2003), a court provided some guidance about the ramifications of section 96(k). Barbee was dating a subordinate at work, which violated the company’s policy and created a conflict of interest. The company gave Barbee and the employee with whom he was involved the option that one of them had to resign or to end the relationship. Barbee refused to resign, and they did not end the relationship, so the company terminated Barbee. Barbee sued, arguing that the company violated Labor Code section 96(k) in that his employer was regulating his lawful conduct during personal time. The court rejected Barbee’s argument in stating:

We conclude that Labor Code section 96, subdivision (k) does not set forth an
independent public policy that provides employees with any substantive rights,
but, rather, merely establishes a procedure by which the Labor Commissioner
may assert, on behalf of employees, recognized constitutional rights. Therefore,
in order to prevail on his wrongful termination claim, Barbee must establish that
his employment was terminated because he asserted civil rights guaranteed by
article I of the California Constitution. We conclude that Barbee cannot make this showing and therefore he cannot establish the first necessary element of his wrongful termination claim.

While the court held that the company’s actions in that case did not violate section 96(k), the facts were very favorable to the employer, and there are other arguments available to employees. For example, an employee may also argue violation of Labor Code Section 98.6 which states in part that “no person shall discharge any employee ... because the employee … engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 ….” An employer may, however, prohibit an employee from any disclosures on the Internet that would be illegal, disclose confidential information, or violate another individual’s (such as co-workers or customers) right to privacy. But with this recent case making national headlines, it is certain that litigation concerning what employees conduct an employer can and cannot regulate on the Internet will be prevalent over the next few years.

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