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Labor - Internet Library of Law and Court Decisions - Updated August 23, 2007

Court denied motion to dismiss complaint charging the defendant Union and two of its organizers with violating the CAN-SPAM Act by sending email solicitations promoting union membership to Verizon employees which purported to come from Verizon managers who did not authorize their transmission.  The Virginia District Court held that it could exercise personal jurisdiction over the non-resident Union organizers because both the corporate servers used to transmit these emails, as well as some of the employees who received them, were located in Virginia. 

The Court further held that plaintiff Verizon had stated valid CAN-SPAM claims against the defendants.  In reaching this result, the Court rejected defendants’ contentions that their solicitations constituted non-commercial speech promoting union membership exempt from the strictures of CAN-SPAM.  Because the Union rendered a service – representation of employees – for a fee – union dues – the emails constituted commercial speech.  As such, held the Court, the failure of these emails to accurately describe their source, or to appropriately advise that they were, in fact, advertisements, as well as their failure to provide mandated opt-out instructions, rendered their senders potentially liable for violations of CAN-SPAM.

Ninth Circuit holds that the unauthorized access and review of the contents of a password protected web site can constitute violations of both the Wiretap Act, 18 USC §§ 2510-2520, and the Stored Communications Act, 18 USC §§ 2701-2710. The court further holds that an employer's accessing without authorization of such a web site created by one of its employees, which site is critical of officers of the employer and urges company employees to consider alternative union representation, can constitute impermissible surveillance of union organizing activities in violation of the Railway Labor Act, 45 USC § 152. The Ninth Circuit accordingly reversed the decision of the District Court below, denied defendant's motion for summary judgment, and reinstated plaintiff's claims.

Quick Hits

Reversing the courts below, the New Jersey Supreme Court holds that employers have a duty to take effective measures to stop sexual harassment that occurs in an online work-related chat room or bulletin board of which they have notice.  Said the Court:  “[W]e find that if the employer had notice that co-employees were engaged on … a work related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment. … To repeat, employers do not have a duty to monitor private communications of their employees; employers do have a duty to take effective measures to stop co-employee harassment when the employer knows or has reason to know that such harassment is part of a pattern of harassment that is taking place in the workplace and in settings that are related to the workplace.” 

The Supreme Court further held that out-of-state employees who posted allegedly defamatory and harassing messages on an online bulletin board about a non-resident co-employee may be subject to jurisdiction in New Jersey if such posts were intended to dissuade that co-employee from pursing a New Jersey action seeking redress under the New Jersey Law Against Discrimination.

Issues of fact precluded the court from resolving either question in the case at bar, and the Supreme Court accordingly remanded the case to the trial court for further consideration.

This action arose out of various posts made by plaintiff’s co-employees on an online forum made available to such employees for discussion of issues of concern to them.  This forum was provided as an added benefit by Compuserve, which was engaged by Continental to provide its employees access to a company computer system on which work related information, such as employee flight schedules and assignments, were available. 

After plaintiff brought a sex discrimination lawsuit against Continental in Washington, her state of residence, various company employees made posts to this forum critical of plaintiff’s work performance, and her decision and motivation for bringing her lawsuit.  Plaintiff gave notice to Continental of these posts, and her objections to them.  Plaintiff commenced this suit in New Jersey against both the posters and Continental, asserting, inter alia, claims of defamation and sexual harassment/hostile work environment.

The Supreme Court reversed the decisions of the lower courts, which had dismissed the action.  On the record before it, the Court could not determine whether the forum in which the comments were made was “sufficiently integrated with the workplace to require” Continental to police harassing activities that occur therein of which it has notice.  The resolution of this question turned on “whether the Crew Members Forum was sufficiently integrated with Continental’s operations so as to provide a benefit to it.”  It should be noted that the reach of the court’s ruling extended beyond the Continental workplace proper, to “settings that are related to the workplace.” 

Similarly, the Supreme Court held that issues of fact as to the out-of-state employees’ knowledge as to whether plaintiff had commenced a suit in New Jersey precluded a determination as to whether the court could exercise personal jurisdiction.  As stated above, for New Jersey to exercise such jurisdiction, the effects of these employees’ conduct must be felt in New Jersey.  Plaintiff was a Washington resident who had commenced a discrimination suit against Continental in Washington.  If the defendant co-employees sought to dissuade her from prosecuting a New Jersey discrimination suit with their comments, they would be subject to jurisdiction in New Jersey.  However, it was unclear from the record if the defendants knew plaintiff had commenced suit in New Jersey, as opposed to Washington, and accordingly the case was remanded for further consideration.

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