The recent firings of two Burger King executives over the content of their Web postings are underscoring the very real problems the virtual world brings to the modern workplace.
While the Digital Age has served up numerous business solutions addressing such topics as inventory control, site selection, self-administered employee benefits and the ability to profile guests, it also has ushered in a new era of workplace frictions as the employee’s right to communicate is pitted against the employer’s need to protect the foodservice brand.
The explosion of websites, blogs, intranets, Web-based seminars, e-mail, and other video- and text-based interactive forums, such as the MySpace, YouTube or Facebook social networks and video-sharing sites, has made it easy for employees to share confidential data, make inappropriate comments about bosses, co-workers or companies, and even sexually harass colleagues, say operators and consultants who specialize in digital communication. So-called cybersmear websites, such as
But bloggers should be aware that the supposed cloak of anonymity that encourages many people to speak their minds online is largely nonexistent, especially as employers are forced into the uncomfortable but necessary role of Big Brother, observers say.
“It’s just a host of land mines out there these days when we are dealing with e-communication in all of its forms,” said Carolyn Richmond, a labor attorney who mainly represents restaurant employers for Fox Rothschild in New York. She noted the widespread use of digital devices like laptops, multifunctional cell phones and personal digital assistants is unleashing a torrent of litigation between employees, ex-employees and employers over sexual harassment, trademark infringement, breach of contract, confidentiality agreements and defamation.
“I’m increasingly consulting with companies that want to update their Internet policies in their employee handbooks,” Richmond said. “Some of them are updating it every three to five years because the technology is moving so fast.
“But one thing is for sure: An employee should expect to have zero expectation of privacy in the work-place because, minus California, where there are more restrictions, most places give employers wide latitude to monitor e-mail, phone calls, even to include video surveillance.”
The clash between the employee’s right to communicate and the employer’s need to protect the brand took a dramatic turn earlier this month when Burger King fired two executives for unauthorized online comments that blasted a tomato farmers advocacy group.
While Burger King would not reveal the identities of the dismissed executives, the firings followed confirmation by the company that unsanctioned comments on various public websites had been traced to Steve Grover, the chain’s vice president of food safety, quality assurance and regulatory compliance. The comments, made under names other than Grover’s, were directed at the Coalition of Immokalee Workers, an advocacy group that has been at odds with Burger King, which has in the past refused to pay a penny more per pound for tomatoes harvested by the group.
McDonald’s and Yum! Brands both have agreed to pay the extra penny per pound, which the CIW claims would improve wages and living conditions for the tomato pickers.
Grover, who joined BK about two and a half years ago after a long tenure as the National Restaurant Association’s top food safety and regulatory compliance expert, was accused of using his daughter’s screen name to post some of the comments, which the CIW called “defamatory.”
Denise Wilson, a spokeswoman for Miami-based Burger King, would neither confirm nor deny that Grover was fired. She said she could not discuss any element of the investigation that had led to the source of the Internet postings and e-mails.
In addition to embarrassing the brand, Wilson said the employees who were terminated violated several corporate guidelines, including those that forbid employees from speaking for the company outside of official corporate releases and sharing with outsiders matters dealing with private negotiations.
John Chidsey, BK’s chief executive, said in a statement: “I was distressed to learn of the allegations. Neither I nor any of my senior management team were aware of or condone the unauthorized activities in question. BKC maintains a strict code of conduct for our employees and vendors, and we will not tolerate unethical or unlawful behavior.”
The matter was aggravated when, just prior to the firings, investigative journalist Eric Schlosser, the author of “Fast Food Nation,” wrote an op-ed piece for the New York Times saying that BK had hired a private security firm to spy on the CIW and their allies. BK reportedly initially denied the allegation, but later confessed that it had hired the firm to provide intelligence about threats against BK employees and properties.
Following the firings, the company also said it would review its purchasing agreements as a “first step” toward resolving the issue with the CIW and indicated that it might soon meet with CIW representatives.
“BKC is looking forward to meeting with the CIW as soon as possible and is committed to finding practical, tangible ways to help ensure decent wages and working conditions for all the tomato harvesters in Immokalee,” Burger King officials said in a statement.
Reached at home on the day news of the firings was made public, Grover said he was “still with [BK] at the moment,” but declined further comment.
Observers said the fact that Burger King was able to trace the posts to Grover is notable, and should send a powerful message to employees who might believe their online messages are anonymous.
Lewis L. Maltby, president of the National Workrights Institute, a Princeton, N.J.-based nonprofit workers’ rights organization and an affiliate of the American Civil Liberties Union, said there is no such thing as privacy and little legal defense available when employees misuse their employers’ confidential data or sexually harass colleagues through the Internet.
There’s “not a great deal you can say to support employees who run afoul of their bosses’ e-mail and Internet restrictions,” Maltby said. “If you send messages on work time and your job believes these messages are objectionable, or you spend too much time talking with your girlfriend or keeping up with the Yankees game, you have no legal protection at all if the boss wants to discipline you.
“The thing most people don’t understand is that the right to free speech only pertains to the government, not in the private workplace in so far as it does not pertain to civil-rights violations dealing with, say, discrimination or whistle blowing,” he continued. “But the thing is there is no legal protection with freedom of speech when discussing your job, even off duty.”
Maltby added that employers have a right to protect themselves and to ferret out individuals who disseminate derogatory information about a company that could damage its reputation or its dealings. While employers cannot put recording devices in the office lunchroom or record phone conversations without letting employees know about it, the Internet and e-mail use is unrestricted to such eavesdropping thanks to spy-ware, Maltby said.
Even home office computers are not out of bounds if employers are compelled to find the source of a confidentiality breach, he said.
“There is no anonymity on the Internet,” Maltby said. “If someone wants to find you, they can.”
While it is unclear how BK traced the postings to Grover, Kelly Benander, a spokeswoman for Yahoo, said the only way the Internet service provider, or ISP, gives up the identity of one of its members is if a court orders it to do so.
That was the case about four years ago when Shoney’s sued Yahoo and won a court order forcing the ISP to turn over the identity of a blogger, who, posing as the family-dining chain’s chairman, was saying online that the company was on the verge of bankruptcy and would soon begin closing stores.
Tina Burke said that in the four years she has been the human resources director for the 44-unit, Irvine, Calif.-based Claim Jumper casual-dining chain, her company has not been forced to take any disciplinary action against an employee for spreading proprietary or unflattering information about the chain on the Internet or through e-mails. She added employees know the company has a strict policy that forbids misuse of the company’s e-mail and computers, particularly as it relates to sexual harassment.
Burke, a lawyer, says that the company actively monitors a number of blogs where employees might post opinions or information the company might find embarrassing or unfounded. In addition, the company is currently researching a blogging policy.
“But it is such a grey area,” she said. “We want to balance our employees’ right to privacy and free speech with the company’s right to protect our reputation.”
Burke said the company does not use spyware, but about a year ago did ask MySpace to remove a post in which one Claim Jumper employee used offensive language to criticize another employee and included with the comments a modified Claim Jumper logo.
“So on our attorney’s letterhead, we told MySpace it was a trademark violation and was negative on the character of our employees,” she said. “It took a while, but they did take it down. I was very surprised by how nice they were about the whole thing, too.”
Dean Sockett, vice president of Keg Restaurants, an 84-unit Vancouver, British Columbia-based casual-dining chain with 16 outlets in the United States, said his company also has a strict policy that outlines what the Internet and the company computers are to be used for during work hours: work.
He said the policy is written clearly enough to inform workers that posting recipes as well as gripes about co-workers, customers, vendors or other labor complaints that divulge proprietary information or information that is untrue could be grounds for dismissal.
“Fortunately, we hire a responsible staff and have never had anyone not comply at this point in time,” Sockett said.
Stephen J. Molen, senior account manager of EthicsPoint Inc., a Portland, Ore.-based risk assessment consulting firm, said much of what his company does is help restaurant clients track down not only the source of negative corporate data on the Internet, but even why the employee felt compelled to write it in the first place. Backtracking such incidents lays the groundwork to prevent future Internet postings, Molen said.
Calling the BK-Grover imbroglio more a “public-relations nightmare” than an operational failing or legal threat, Molen encouraged operators to be proactive wherever they can and to monitor employees’ communication about company business to outsiders, even if it means cameras and spyware.
