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May 20, 2011

By John A. Gallagher

Yesterday, TLNT published an article (Court: Facebook at Work Does Not Violate Computer Fraud Act) discussing whether use of the Internet while at work can constitute a “crime” under the Computer Fraud & Abuse Act.

The TLNT post discusses a recent decision by a federal court in Florida, Lee v. PMSI, Inc., which held that an employee who uses Facebook and sends personal emails while at work does not violate the CFAA, and therefore the employer’s counterclaim was thrown out of court.

I am not surprised at the portions of the decision discussing the CFAA. This was an excellent, but righteous, victory for plaintiff’s counsel [and very bad defense strategy, in my view, as discusssed below].

What I find more striking, however, are the facts underlying the dispute.

A very poor strategy for employers

We have in the past blogged about the use of Internet at the office, and how employers are with increasing frequency citing and relying upon such use as a justification for firing a [disfavored] employee. We have posited that this is occurring with increasing frequency, and that firing employees for using the Internet is a very poor strategy for employers. In fact, we even suggested a few months ago that employers would attempt to use the CFAA as a basis for justifying their terminations.

The above scenario is exactly what happened in the Lee case. We have obtained a copy of the pleadings/motions filed in the case, and they are revealing.

The employee sued for pregnancy discrimination, alleging she was fired three months after she advised the company that she was pregnant. The employer contended that it had a “legitimate, non-discriminatory reason” for her firing: she had used Facebook while at work and had also used the company’s computers at work to log on to and use her personal email account.

Not only that, it filed a counterclaim against the plaintiff, seeking damages from her for her violations of CFAA. It seems plain to me that either:

  1. the employer planned to lean on the alleged criminality of the employee’s actions from the very beginning; or,
  2. that the employer’s attorney came up with this bright idea on his/her own [I can assure you that the ordinary jury will not find the employer’s heavy handed tactics very attractive]. The counterclaim has now been tossed.

Was the employee singled out for termination?

So far, there has not been much discovery in the case, so it is unclear exactly how and when the employer discovered the employee’s use of the Internet, although it seems clear that it happened several months after she advised the company she was pregnant.

Also, reading between the lines, it does not appear as if the employer is maintaining that plaintiff did anything inappropriate, i.e. post a negative statement about her boss, email sensitive corporate documents to herself, etc. Rather, it appears that the employer is alleging that her mere, garden-variety use of the Internet at work for personal reasons justified her termination.

In my estimation, as discussed previously, this is a real bad defense.

Why? If plaintiff merely did personal, inoffensive networking/communicating while at work, it should be pretty easy to prove she was singled out for termination. Why? Because I am confident that discovery will disclose that many employees and managers have done the very same thing while employed at PMSI.

We will continue to monitor this case, and report when we have learned more.

For now, the lesson is that you as an employee should avoid doing personal business while at work. However, just as we sometimes need to call the electric company or our mother during work hours, eliminating such use completely is probably unavoidable.

As for employers, relying upon ordinary Internet usage as a basis for terminating an employee in a protected class is a real bad move. I would go so far to say, HR representatives and managers, people in glass houses shouldn’t throw stones! Or even, let he/she who has not sinned cast the first stone!

This was originally published on attorney John A. Gallagher’s Employment Law 101 blog.

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