In the first case of its kind, Pietrylo v Hillstone Restaurant Group, d/b/a Houston’s Restaurant, 2009 WL 3128420 (D.N.J. Sept.25, 2009), we represented two employees, who were fired by their former employer for allegedly making derogatory comments about their jobs outside of work on a private MySpace group page.
One of the employees created a MySpace group page called “The Spectator” as a place for Houston’s employees to “vent about any BS” they encountered at work. He selected all of the privacy controls offered by MySpace in setting up the page. The group was designated as “private”, meaning access to the group was limited to MySpace users who received an invitation from him to join the group. Only he, not invited members, could send out invitations. He invited several Houston’s employees, but no managers or upper management personnel. The invitees included a female Houston’s greeter. The greeter accepted the invitation and became an authorized member of the group. Access to the group was through the member’s email address and personal, private password.
Upper management became aware of the group page. A member of upper management called the greeter into his office while she was working and asked her for her email address and personal private password so that he could access the page. She did so, but later testified, that she did so only because she thought something would happen to her if she did not.
This manager went on the page using the greeter’s personal information and copied the postings. He also passed the greeter’s personal information up the corporate ladder to other members of upper management. The page was accessed a number of times. Subsequently, Houston’s terminated the two employees based upon their comments on the group page and their involvement in creating it.
We filed suit on behalf of the fired employees, and amongst other things, alleged that Houston’s had violated federal and state statutes involving improper access to stored electronic communications.
After three (3) years of contentious litigation, the case went to trial before a jury. The Honorable Faith Hochberg presided over the trial. The trial lasted a week. The jury returned a verdict in favor of our clients finding that Houston’s managers had accessed the MySpace site “without authorization” and acted “maliciously”. The jury awarded compensatory damages and punitive damages.
The case received national attention being featured on ABC: Eyewitness News, CNN: American Morning, Fox News: Fox and Friends, and in the Wall Street Journal, AOL: National News, and the New Jersey Law Journal.
Subsequent to the jury decision in Pietrylo, thirteen (13) states, including New Jersey, passed “password protection” laws prohibiting employers from requesting username and password information, or otherwise accessing, the password-protected portions of an employee’s personal social media.
Senators from New York and Connecticut have sponsored proposed federal legislation for a password protection act citing the Pietrylo decision. The federal legislation is pending.