It’s easy to see the family and marital consequences of the recent Ashley Madison hack, which outed the names of those registered for the adulterous dating site. Workplace consequences, however, are a murkier area. While what happens in the home doesn’t cross over to affect the job most of the time, some members of Ashley Madison used workplace emails to register – and many employers weren’t happy with the publicity. Though employers may want to quickly put the matter behind them by firing the outed employee, they must take care not to worsen the situation by violating any privacy rights that he or she may have.
First, employers will be legally liable for making business decisions, such as employee termination, from information not legally obtained. Federal and state regulations may prevent certain practices, such as wiretapping or searching through private email storage accounts, from being used to implicate employees. Once all relevant statutes and acts are reviewed, the employer must next look to company policy. Many policies impose negative consequences on employees who use company email addresses or computers to access private websites-in order to enforce such policies, though, it must be clear that the regulations themselves don’t infringe upon constitutional rights. Some areas of concern include not giving employees notice of what is proper and improper use and a failure to tailor the policy to the business’s specific needs (using overbroad prohibitions or prohibitions not created for legitimate business reasons).
If no applicable policies exist, or if the employee didn’t use company email addresses or computers, even more restrictions on termination may apply. Firing someone solely for engaging in adulterous behaviors will likely infringe upon employee rights, unless the situation falls within very narrow categories. One category is that action can be taken if there’s an agreement that marital fidelity is an “essential function” of the employment, such as a morality clause in a contract. Another situation is if the employee was having a consensual affair with another employee, and business performance was reasonably at risk. Ultimately, a business taking retaliatory action must be done cautiously -the constitutionally granted privacy rights of the employee will often trump any embarrassing hits to a company’s reputation. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and will soon serve as Managing Research Editor of that publication.