There is an app that allows people to compare their email contact list to registrations in the hacked Ashley Madison data. So employers can see if any of their employees have registered with the marital affair site. I am not linking to the app because I think it’s a violation of privacy to check.
But I also understand why some employers might want to know if there is a PR nightmare headed their way because some key executive is registered.
Jonathan Segal has a great post on both legal and practical considerations before you use the app to see if your officers or employees are registered. Please read it before you check.
I would add the following considerations (some of which Jonathan also mentioned).
- Privacy Rights. Some states, like California, have a Constitutional or statutory right to privacy that protects each person’s privacy from everyone else’s inquiry. While I understand that the AM information is available online, which is public and anyone can look, once someone has the information, most people will tell someone else or do something with it. At that point, the company is taking action based on a person’s registration on a website, that was supposed to be private. The action is based on assumptions about the person’s intent and actions, that may or may not be true. And any investigation based on the information will be into the person’s sex life, which is generally private under both state and federal law.
- Off-duty Conduct. Some states, including California, also have laws that prohibit a company from taking adverse employment actions based on the employee’s off-duty conduct, unless that conduct directly affects the employer. Most of these laws were passed before the internet and online shaming, so it’s unclear exactly where the boundaries lie on when an employer can legitimately say that the employee’s off-duty conduct directly affects the employer’s business. This is not a good test case.
- Knowing Won’t Prevent the Damage. The most common rationale for doing the search is so the company knows and can do damage control. Right. There is no damage control for this. The employee will come up with some story to explain it was not him, or someone did it as a prank, or their marriage was on the rocks and they signed up out of curiosity, but never did anything with it. That last one is probably true. What is also true is that people have affairs all the time, often at work. And most companies get wind of it sooner or later and usually turn a blind eye until the relationship goes south, the claim comes in, and the matter is resolved under wraps of a confidentiality and nondisparagement agreement. If this has happened at your office and now, suddenly the company is all righteous and starts publically firing people, the backlash on treating situations differently will not be pretty. I believe it’s better to say, the company had no idea and is handling it privately, than to know in advance and try to take some preemptive action based on a website registration that is only proof of a website registration.
- It Encourages This Type of Hacking and Online Shaming. The drama, the judgment, the sanctimony are all based on our belief that we are good and everyone on that list is bad. It’s just not true. Everyone has made mistakes, and most of us have relationship regrets. The more time and attention we give situations like this, the more we encourage others to do similar things that are really about shaming people simply because they can.
Online shaming is a powerful weapon. It should be used rarely, if ever, with great deliberation, and only for truly important causes. This is pure sanctimony for the sake of drama. When we participate, we become part of the problem.
I’m not sure how we became such a tabloid society, especially about other people’s sex lives. But we still have the power to opt out.
