Diane Kuprewicz was angry when she lost her job at the School of Visual Arts in New York. Instead of going quietly, however, she decided to strike back. Unfortunately for the school and its director of human resources, Kuprewicz was computer savvy, and got her revenge in a very creative "21st century" way.
First, Kuprewicz posted two authentic-looking job listings on a Web site, announcing that the school was seeking applications for a director of human resources position. The school was not seeking such applications. In addition, Kuprewicz registered the work e-mail address of the director of human resources on a number of pornographic Web sites. As a result, the director received huge amounts of sexually explicit e-mails from these sites at work. The director also began to receive unwanted catalogs of pornographic materials at work.
Kourosh Kenneth Hamidi also sought revenge against his former employer, Intel, but his approach was more direct. After Hamidi left the company, he created a Web site critical of Intel and its employment practices. In addition, he sent mass e-mails to Intel employees at their work addresses, in which he "warned" them of the company’s unfair employment practices and suggested that they seek employment elsewhere.
Human resources professionals have always had to deal with disgruntled ex-employees who speak out against their former employers. As these cases illustrate, however, the Internet can raise this problem to an entirely new level.
Stealing "a cow’s milk"
In the past, unhappy former employees might have sent a letter to the editor of the local newspaper, or complained loudly to their neighbors. With the widespread availability and expansive reach of the Internet, however, these individuals have a much more effective and invasive method for harassing their former employers. For employers looking to stop these acts of revenge, or "cyber-harassment," the use of the Internet and e-mail poses unique legal questions. The law in this area is still evolving, and employers are still trying to ascertain what rights they have to protect themselves and their current employees.
For the School of Visual Arts, the legal solution to the cyber-harassment campaign came from a traditional cause of action, rarely seen or applied in courtrooms today, and created well before the days of computers and the Internet. The school’s solution was to sue the former employee for "trespass to chattels."
If a person sues another for theft, the cause of action is called "conversion"--the person converted your property to his own by stealing it. The little brother of conversion is called "trespass to chattels." A chattel is simply an article of personal property. A claim for unlawful trespass to chattels must show that a person dispossessed another person of his property, or used or otherwise meddled with the person’s property in a way that damaged the property.
Trespass to chattels, therefore, is something less than outright theft; it is more like unlawful borrowing. To draw an analogy from colonial times (when trespass to chattels first became unlawful), conversion of property would be when a neighbor steals your cow; trespass to chattels would be when the neighbor takes all of the cow’s milk.
In the case involving the School of Visual Arts, the "cow" was the company’s computer system. Kuprewicz did not "steal" the school’s computer system, but she did "use and meddle" with the computer system and e-mail accounts when she caused mass e-mails to bombard the system. The school, therefore, brought suit against Kuprewicz using the theory of trespass to chattels, claiming that the chattel was the school’s computer, Internet and e-mail systems.
The attorney for the school put forward evidence before the court that its computer and e-mail systems were harmed by Kuprewicz’s actions. The school claimed that the unsolicited e-mails from the pornographic sites depleted hard-drive disk space, drained processing power, and adversely affected other system resources on the school’s computer system. The court found that, by demonstrating that its computer system was damaged evidence, the school had established a claim for trespass to chattels, and stopped Kuprewicz from continuing her campaign of cyber-harassment.
In Hamidi’s case, on the other hand, Intel did not put forward evidence that its computer hardware or software was damaged, or that Hamidi’s mass e-mails prevented Intel from using its computers for any unreasonable length of time. Intel, therefore, could not demonstrate any damage, and could not establish trespass to chattels.
The Kuprewicz and Hamidi cases teach companies that, when faced with campaigns of cyber-harassment by disgruntled former employees (or customers, or clients), they can bring a claim of trespass to chattels. The cases also demonstrate that if a company can prove damage to its computer, Internet or e-mail systems, it could obtain legal relief to stop the harassment.
Weigh the cost/benefit
The law in this area is still developing, so companies should not simply rely on claims of trespass to chattels to stop cyber-harassment. Not every unwanted e-mail from a former employee will result in a lawsuit. Employers must weigh the costs and benefits of going to court to enforce their rights in this area. Employers should also take proactive steps to defend themselves against cyber-harassment campaigns.
First, employers can and should purchase Internet and e-mail filters that stop unwanted materials from entering their computer systems. Some of these programs do an excellent job of filtering e-mails.
Second, if an employer decides that a former employee will receive severance payments, the company should insist on a clear non-disparagement agreement in the release obtained for the severance payment. In the non-disparagement clause, the employee should agree to not make any disparaging comments about the company or its employees. Further, the non-disparagement clause should clearly extend to all forms of communication, including e-mails, chat rooms, instant messaging and all other forms of electronic communication. A properly worded release can give the company the ability to sue to recover the severance paid if the employee begins a cyber-harassment campaign, and potentially stop the action.
Third, the company should carefully monitor any actions taken or e-mails sent by the ex-employee to see if the person makes any false statements, either in an e-mail or elsewhere on the Internet, that could be the basis for a defamation claim.
Finally, employers should remember the importance of disciplining and terminating employees with fairness and honesty. An employee who is given opportunities to improve her performance, a thoughtful and honest explanation of why she was not a good fit for the company, and assistance in transitioning is much less likely to resort to such extreme and destructive behavior. Human resources can play a critical role in preventing costly and time-consuming legal action.
The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.