The case of David Donatelli is a good reminder to employers how important choice of law provisions can be in noncompetition agreements. The Trade Secrets and Noncompete Blog recently chronicled a fight between EMC Corp (based in Massachusetts) and Hewlett Packard Co. (based in California) over the enforceability of a noncompetition agreement with a former high level EMC employee.

California courts have clearly established that noncompetition agreements are very difficult to enforce under California law, as explained further below. Therefore, once Donatelli left employment with EMC, the company raced to file a lawsuit against the former employee to prevent him from working with HP in Massachusetts. HP also raced to file a lawsuit in California barring EMC from enforcing the noncompetition agreement.

The Massachusetts court ruled first, finding that the agreement was enforceable under Massachusetts law, and that California law does cannot affect the court’s ruling. The court allowed Donatelli to present evidence establishing that his duties and job at HP did not directly compete with his former position at EMC. The court allowed Donatelli to work for HP in California given the fact that he proved there is minimal overlap between his new HP position and his former position at EMC.

Noncompetition Agreements In California

In California, noncompetition agreements are governed by Business & Professions Code section 16600, which states: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” The statute permits noncompetition agreements in the context of sale or dissolution of corporations (§ 16601), partnerships (§ 16602), and limited liability corporations (§ 16602.5).

Under the common law, as still recognized by many states today, contractual restraints on the practice of a profession, business, or trade, were considered valid, as long as they were reasonably imposed.

In 2008, the California Supreme Court ruled on the enforceability of noncompetition agreements under California in Edwards v. Arthur Andersen LLP. Arthur Andersen argued that California courts have held that section 16600 embrace the rule of reasonableness in evaluating competitive restraints.

The Court disagreed with Arthur Andersen, and noted:

We conclude that Andersen’s noncompetition agreement was invalid. As the Court of Appeal observed, “The first challenged clause prohibited Edwards, for an 18-month period, from performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination. The second challenged clause prohibited Edwards, for a year after termination, from ‘soliciting,’ defined by the agreement as providing professional services to any client of Andersen’s Los Angeles office.” The agreement restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession.

The Court found that this agreement was invalid because it restrained Edwards’ ability to practice his profession.

However, Arthur Andersen argued that section 16600 has a “narrow-restraint” exception and that its agreement with Edwards survives under this exception. Andersen pointed out that a federal court in International Business Machines Corp. v. Bajorek (9th Cir. 1999) upheld an agreement mandating that an employee forfeits stock options if employed by a competitor within six months of leaving employment. Andersen also noted that a Ninth Circuit federal court in General Commercial Packaging v. TPS Package (9th Cir. 1997) held that a contractual provision barring one party from courting a specific customer was not an illegal restraint of trade prohibited by section 16600, because it did not “entirely preclude[]” the party from pursuing its trade or business.

In refusing to accept the “narrow-restraint” exception for noncompetition agreements in California, the Court stated:

Contrary to Andersen’s belief, however, California courts have not embraced the Ninth Circuit’s narrow-restraint exception. Indeed, no reported California state court decision has endorsed the Ninth Circuit’s reasoning, and we are of the view that California courts “have been clear in their expression that section 16600 represents a strong public policy of the state which should not be diluted by judicial fiat.” [citation] Section 16600 is unambiguous, and if the Legislature intended the statute to apply only to restraints that were unreasonable or overbroad, it could have included language to that effect. We reject Andersen’s contention that we should adopt a narrow-restraint exception to section 16600 and leave it to the Legislature, if it chooses, either to relax the statutory restrictions or adopt additional exceptions to the prohibition-against-restraint rule under section 16600.

The Court’s ruling basically eliminated the validity of non-competition agreements under California that are not expressly provided for in Section 16600.

The $86 million trial award against Starbucks for violation of California Labor Code provisions on tips was overturned by a California appellate court (Chau v. Starbucks). The case was initiated by Jou Chau who was a former Starbucks barista. He brought a class action against Starbucks alleging that the company’s policy permitting shift supervisors to share in tips that customers place in a collective tip box violated Labor Code section 351 and California Unfair Competition Law. The trial court certified a class action of current and former baristas and held a bench trial, in which it held Starbucks was liable for $86 million.

The appellate court, in overturning the trial court’s award, succinctly summarized the error it found the trial court made:

The applicable statutes do not prohibit Starbucks from permitting shift supervisors to share in the proceeds placed in collective tip boxes. The court’s ruling was improperly based on a line of decisions that concerns an employer’s authority to mandate that a tip given to an individual service employee must be shared with other employees. The policy challenged here presents the flip side of this mandatory tip-pooling practice. It concerns an employer’s authority to require equitable allocation of tips placed in a collective tip box for those employees providing service to the customer. There is no decisional or statutory authority prohibiting an employer from allowing a service employee to keep a portion of the collective tip, in proportion to the amount of hours worked, merely because the employee also has limited supervisory duties.

At issue in this case is the interpretation of Labor Code section 351, which states: "No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron . . . . Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for." Plaintiff here argued that the shift supervisors who participated in sharing the tips left in the tip jar were “agents” of Starbucks, and therefore are prohibited from sharing in the tips.

The court explained the manner in which Starbucks collects and shares the tips left in the tip jars:

Because of the team-service approach, a collective tip box is provided for those customers who choose to tip the group of employees, rather than an individual. Collective tipping is the norm with occasional instances of individual tipping. Starbucks has a highly detailed written policy for collecting, storing, and distributing these collective tips. This policy requires each store to have a "standard 4" x 4" plexi cube container for tips." The container must be placed near each cash register, and should not have any signs on it. At the end of each day, an employee must store the tips under numerous rules that ensure the security of the tip funds.
Starbucks mandates that the only employees eligible to share in the weekly collective tips are "all baristas and shift supervisors who worked that week." Store managers and assistant managers are prohibited from receiving any portion of these tips. Additionally, only baristas and shift supervisors are eligible to count and distribute the tips. To calculate the weekly tip distribution, the selected counting employee must: (1) determine the total monetary amount from the tip container; (2) calculate the total number of hours worked by all baristas and shift supervisors in the particular store; (3) divide the total amount of hours by the store’s total earned tips for the week to obtain the tip hourly rate; (4) multiply each of the barista and shift supervisor hours by the tip hourly rate to determine each employee’s tip income; and (5) place each employee’s tip income in a sealed envelope, label the envelope with the employee’s name, and store the envelope in the safe until the employee is available to take possession of it.

The court recognized that if a customer left a tip for a particular employee, then the employee was entitled to keep that tip and was not required to place the tip in the collective tip jar.

Plaintiff argued that because the shift supervisors were considered Starbucks’ agent under Labor Code section 350, they cannot participate in the sharing of the tips even if they serviced customers who left tips in the communal tip jar.

The court found that even if the shift supervisors meet the definition of agent under section 350, Labor code section 351 does not prohibit Starbucks from allowing shift supervisors from sharing in tips that were left for baristas and for the shift supervisors. The court explained:

Because—as plaintiffs concede—section 351 does not prohibit a shift supervisor from keeping gratuities given to him or her for his or her customer services, there is no logical basis for concluding that section 351 prohibits an employer from allowing the shift supervisor to retain his or her portion of a collective tip that was intended for the entire team of service employees, including the shift supervisor. In this situation, the shift supervisor keeps only his or her earned portion of the gratuity and does not "take" any portion of the tip intended for services by the barista or baristas. If—as is undisputed here—the tips were left in the collective tip boxes for the baristas and shift supervisors, and it was permissible for Starbucks to require an equitable division of the tips according to the number of hours worked by each employee, it is not a violation of section 351 for the employer to maintain a policy ensuring those service employees benefit from a portion of those tips. Because a shift supervisor performs virtually the same service work as a barista and the employees work as a "team," Starbucks did not violate section 351 by requiring an equitable distribution of tips specifically left in a collective tip box for all of these employees.

Mandatory Tip Pooling vs. Tip Apportionment

The court explained there is a difference between mandatory tip pooling and tip apportionment:

[T[he legal principles prohibiting an employer from requiring an employee to share his or her personal tip with the employer’s agent ("mandatory tip pooling") do not logically apply to an employer policy requiring equitable apportionment of the proceeds in a collective tip box ("tip apportionment").

The court explained that under previous case law “an employer violates section 351 if it requires an employee to give up any part of his or her tip for the benefit of the employer’s agent.” However, the court set forth that the case here does not involve tip pooling, but rather tip apportionment. Starbucks did not require its baristas to give their tips to the shift supervisors. The policy at issue in this case was how employees divide tips left for them in a collective tip jar. The court held that Starbucks’ policy appropriately distributes the tips as close as possible to the intent of the customers who leave a tip in the jar, which does not violate the Labor Code.

Employers concerned about this issue should approach with caution. The court made it very clear that the case was decided on facts specific to Starbucks the policies specific to this case.

The case, World Financial Group, Inc. v. HBW Insurance & Financial Services, Inc. involved the situation where employees broke off from their former employer and started to work for a direct competitor. After leaving employment, the former employees made statements to former colleagues and customers in an attempt to have them join their new venture. 

However, the defendants signed an “Associate Membership Agreement” with World Financial that prohibited them from recruiting customers, employees, and sharing trade secrets of World Financial for a limited time after they left employment with World Financial. World Financial Group, filed the lawsuit for breach of contract, breach of the implied covenant of good faith and fair dealing, conversion, violation of the Uniform Trade Secrets Act and the Unfair Competition Law, intentional and negligent interference with prospective economic advantage, and unjust enrichment. 

The defendants took an offensive step and filed an anti-SLAPP motion to dismiss plaintiff’s lawsuit in arguing that their actions were protected speech. The court explained that an anti-SLAPP motion:

…provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." 

The issue in this case was whether defendants’ speech is afforded protection under the anti-SLAPP statue. The anti-SLAPP law applies to claims "arising from" speech or conduct "in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest." (Code of Civil Procedure § 425.16, subd. (e)(4).)

The court held that the type of speech at issue here was not protected. The court explained:

While employee mobility and competition are undoubtedly issues of public interest when considered in the abstract, one could arguably identify a strong public interest in the vindication of any right for which there is a legal remedy. "The fact that ‘a broad and amorphous public interest’ can be connected to a specific dispute is not sufficient to meet the statutory requirements" of the anti-SLAPP statute. [citation] By focusing on society’s general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called "synecdoche theory of public issue in the anti-SLAPP statute," where "[t]he part [is considered] synonymous with the greater whole." [citation] In evaluating the first prong of the anti-SLAPP statute, we must focus on "the specific nature of the speech rather than the generalities that might be abstracted from it. [citation.]" 

The court found that the defendants’ attempt to frame their speech as involving "the pursuit of lawful employment pursuant to Bus. & Prof. § 16600" and "workforce mobility and free competition" as “infirm.” The court held that the defendants’ speech did not rise to this protected level because it was merely soliciting a competitor’s employees and customers.  There was no public  The court stated that if it applied the anti-SLAPP statute as defendants requested, it “would effectively ‘eviscerate the unfair business practices laws,’ a result the Legislature plainly did not intend.” To bring the point home, the court quoted The Godfather: “As Salvatore Tessio said to Tom Hagen, ‘Tell Mike it was only business.’ So it is here.”

The Wall Street Journal recently wrote about how employees are surprised after being given notice that they have been laid-off that they cannot retrieve personal (and business related) information from their computers. The author notes that with advances in technology that often times blur the boundaries between work and personal pursuits, many employees are hit really hard when they cannot retrieve their personal contacts from their work PDA or computer:

As layoffs sweep across industries, employees’ personal information is winding up in the dustbin, as well. Most workers know better than to store personal files on their office computer. But employees who spend the majority of their time at the office often treat the company PC as their personal gadget, filling it with music, photos, personal contacts — even using the computer’s calendar to track a child’s soccer schedule. That makes it all the more distressing when a newly laid-off worker learns that his digital belongings are company property.

The author correctly notes that what information is the employee’s as opposed to the employers is probably going to be set forth in and governed by the employer’s policies. Often times these policies will be provided to the employee when he or she first starts:

Employees worried about their job security should review the forms they signed when they were hired. They should look at the company’s electronic communications policy, employee guidelines and non-compete agreements to make sure they understand everything properly. When employees sign these agreements, they should also make copies to save at home, too, Ms. Yancey says. Those that break these agreements risk being fired or sued by their employer, she adds.

It is important to note that in California, it is extremely difficult for employers to enforce non-competition agreements due to a California Supreme Court ruling in Edwards v. Arthur Andersen last year. California employers can still protect company information through other means, such as establishing that the information is a trade secret, or is proprietary information.

Steps California Employers Should Take To Avoid Litigation Over Electronic Data

  • California employers need to establish a clear policy that establishes that the employee does not have any privacy expectation in any data stored on company owned computers or devises.
  • The policy should establish that all aspects of an employee’s use of company equipment can be monitored.
  • Employers need to have the employees sign an acknowledgment of electronic data and monitoring policy.
  • The employer should remind employees of the electronic data policy at least every year.
  • If employers do have trade secrets, they need to maintain strict protocols to ensure that only employees with a “need to know” have access to the information and take steps to ensure that the information is protected.
  • If an employee who has been laid off requests personal information from his or her computer such as family pictures, an employer’s accommodation of this request will be somewhat of a step towards minimizing the employee’s ill-will towards the company (and less likely to pursue litigation against the company).
     

California restaurateurs received a huge victory from the Second District appellate court’s ruling in Budrow v. Dave & Buster’s Of California, Inc. The lawsuit against Dave & Buster’s alleged that its tip pool policy violated California law in that it required employees to tip out bartenders who did not provide "direct table service." The court rejected Plaintiff’s argument that an employee had to have “direct table service” in order to validly participate in the tip pool.  As previously written, this is the second appellate court decision that reached the same result.

The court first explained that Labor Code section 351 does not impose a “direct table service” requirement on tip pools. The court explained that are two parts of Labor Code section 351 that are relevant to the “direct” and “indirect” table service issue. First, section 351 provides that “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron.” Second, section 351 also provides that “[e]very gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.” Based on a plain reading of the Labor Code, the court rejected Plaintiff’s argument that there had to be direct table service for all employees who were a part of the tip pool.

Plaintiffs also argued that the “direct table service” requirement was established by prior case law in Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. The court rejected Plaintiff’s argument on four grounds:

  1. The Old Heidelberg case does not define “direct” as opposed to “indirect” service. The court noted that a bartender pouring a drink at the bar could be considered as providing direct table service. The court also noted that Old Heidelberg relied upon “industry practice” of tipping 15% to busboys and 5% to bartenders. Therefore the court could not agree that Old Heidelberg even defined “direct table service” for use as a requirement in this analysis.
  2. The “references to direct table service are made in Old Heidelberg without any attempt to fashion a rule that would limit tip pools to servers and busboys.”
  3. Old Heidelberg did not establish who which employees, if any, are to be excluded from the tip pools.
  4. Old Heidelberg did not decide which limitations on the types of employees are allowed to participate in tip pools, nor did it set forth “criteria or standards” to establish these limitations.

Therefore, the court held that there was no standard that only employees who provided direct table service are those who could participate in tip pools.

The court explained that “[t]ip pools exist to minimize friction between employees and to enable the employer to manage the potential confusion about gratuities in a way that is fair to the employees.” And the artificial distinction between “indirect” and “direct” table service is of no help.

The opinion can be downloaded from the court’s website for a short period of time in PDF or Word.

I am sure HR managers have their share of funny interviewing tales – but I recently came across the How To Nail An Interview website (via Seth Godin).  The author of the site staged a fake company to see what type of applicants he would have for an open "marketing coordinator" position.  He recorded the interviews (yes – the first idea I had was if this was legal, but the author says he disclosed the fact that the participants might be recorded).  The outcome is hilarious.  

Readers should visit How To Nail An Interview, but here are a couple of my favorite interviews from the site.

Too much information on a Facebook profile :

https://youtube.com/watch?v=SjJjQ2sXfuQ%26hl%3Den%26fs%3D1

Employee who does not want responsibility:

https://youtube.com/watch?v=WJisIHXvmRs%26hl%3Den%26fs%3D1

 Another California Court of appeal ruled on the issue of tip-pooling in California. In Etheridge v. Reins International California, Inc., the court held that employees who do not provide “direct table service” may participate in tip-pools mandated by employers. (This holding confirms another recent appellate court’s ruling in Budrow v. Dave & Buster’s Of California, Inc. on the same issue.)

The court set forth the issue in the case:

Tip-pooling, a practice by which tips left by patrons at restaurants and other establishments are shared among employees, is a common practice throughout California and the nation. No California statutes expressly address the practice. In this case, restaurant servers challenge the legality of a mandatory tip-pooling arrangement, whereby, as a condition of their employment, the servers must share tips with certain other employees at the restaurant. While the servers do not contest the requirement that bussers share in the tip pool, they challenge the inclusion of employees who do not provide “direct table service.”

The complaint alleged that Reins has a mandatory tip pooling policy by which its servers are required to “tip out” certain categories of Reins’s employees who do not provide direct table service. Specifically, it is alleged that servers are required to pay a share of their tips to the kitchen staff, bartender, and dishwashers.

Plaintiff alleged that because the tip-pooling policy at issue mandated that employees who do not provide direct table service (such as the kitchen staff) participate in the mandatory tip-pool violates Labor Code section 351, which governs gratuities.  

Tip Credits vs. Tip Pools

The Court clearly explained that tip credits and tip-pools are two different items and should not be confused. Tip credits, where the employer applies a portion of the employees’ tips against the employer’s obligation to pay minimum wage (which were not an issue in this case), are not valid in California:

The first is a practice known as a “tip credit,” by which an employer credits a certain amount of the tips received by an employee against the employee’s wages. In other words, when using a tip credit, the employer pays the employee less than minimum wage, with the understanding that the employee’s tips will make up the difference. As will be discussed at length, tip credits against minimum wage are permissible under the federal Fair Labor Standards Act (29 U.S.C. § 203(m)); tip credits against minimum wage were once permitted under California law, but were subsequently prohibited by statute. (Henning v. Industrial Welfare Com. (1988) 46 Cal.3d 1262, 1270-1275.)

Under tip pooling, employees who receive tips share the tips with other employees in the restaurant. As the court explained, there are different types of tip pooling arrangements:

This case raises the issue of precisely which other employees may participate in a tip pool. In one type of tip pool, the pool is designed to spread the risk of low tipping patrons among all tipped employees; thus, only tipped employees may participate in tip pools. In another type of tip pool; the pools are designed to share tips with non-tipped employees who are considered deserving of tips, but who, for some reason (perhaps tradition, or location) are generally not tipped by patrons.

Labor Code Section 351 – Gratuities

The primary issue of the case is the interpretation of Labor Code section 351.  The court examined the first California court opinion that addressed the validity of tip pools, Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. The court noted that while the Leighton court was primarily resolving the issue of requiring servers to "tip-out" bussers, that ruling also held that bartenders could participate in tip pools.  The Leighton court also stated that tips belong “to the employee[s] who contributed to the service of that patron.” Therefore, the court held that Leighton’s holding and rational extended to all employees who contribute to the service of customers, not just those who provide direct table service. 

The court also held that common sense dictates all employees should be able to participate in a tip-pool:

But a “direct table service” limitation would allow a busser to participate in a tip pool if the busser clears the plates while the patron is still seated at the table, but not to participate if the busser waits until after the patron has departed. The work is the same; the next patron still starts his dining experience with an equally clean table, but the busser who cleans between patrons would be barred from participating in the tip pool because he does not personally interact with any patrons. This illogical result casts doubt on any “direct table service” requirement.

Is this the last word on tip-pools in California? 

Probably not. Judge Croskey, who provided a concurring opinion, and Judge Klein, who provided a dissenting opinion on the "direct table service" issue, both called for the California Supreme Court to review this issue to provide further guidance.

I completed two seminars (one for California and the other nationwide) last week for BLR on conflict management in the workplace, and I thought it would be a good time share a few additional thoughts on the topic. I’ve encountered a lot of skepticism about this topic – especially from other lawyers – that it is a “touchy feely” topic. I am not claiming a manager can learn everything she needs to know about the topic in one seminar, but it is clearly a skill that supervisors and managers need to develop to be successful. If there was not conflict in the workplace, or if it was simple to deal with, managers would be out of a job. Thankfully for managers, this skill is not easily learned, and takes years of experience to develop. Here are a few tips to assist in the process.

Don’t avoid or ignore workplace conflicts.

Letting conflict fester will lead to litigation. If managers get involved in workplace conflicts early and often, it is more likely that the situation will be dealt with before a party thinks their rights have been violated and they need a lawyer.

Have a discussion with both workers involved in the conflict together.

Lay a few ground rules for the discussion:

  • Everyone will be heard (the supervisor will have to enforce this rule)
  • One speaker and one conversation at a time
  • Challenges are acceptable, must be respectful
  • Focus on issue (project, assignment, task at hand, etc.)
  • The workers can only use “I” statements NOT “YOU” statements (Example: “I received the information too late to include in my report.” Not: “You got it to me too late.”)
  • No personal attacks – criticism must be of acts, not the other person (Example: “That project is a waste of company time.” Not: “You are wasting my time.”)
  • Set clear guidelines on what is expected of the workers on a going forward basis (It is recommended to document these steps.)

Know when conflict crosses the line to create legal liability.

Managers should always be thinking about whether the conflict crosses the line from simple workplace disputes or personality conflicts into actionable harassment, discrimination or retaliation.

Provide reprimands the right way.

Managers should think through how to approach an employee when giving them a warning, either verbal or written. Here are a few suggestions:

  • The warnings should not be administered in front of other employees.
  • The manager should think through how the discussion will go, and possible responses to different reactions from the employee.
  • Set out the clear expectation of what the employee needs to do to correct the problem.
  • Document the warnings – even verbal warnings to employees. If the warning is a written warning, have the employee sign the warning.  If they refuse to sign it, record on the document that the employee refused to sign.

The issue in Moreno v. Hanford Sentinel, Inc., as stated by the court, is:

… whether an author who posts an article on myspace.com can state a cause of action for invasion of privacy and/or intentional infliction of emotional distress against a person who submits that article to a newspaper for republication.

The case arose out of a college student, Cynthia Moreno’s, return to her hometown of Coalinga, California (which is somewhere between Sacramento and Los Angeles). She wrote “An ode to Coalinga” and posted it on her site on MySpace.com. The ode badmouthed her hometown. Six days after publishing it on MySpace, she took the writing off of the site, but the town’s high school principal submitted the writing to the local newspaper for publication. The newspaper republished the ode in the letters to the editor section and listed Cynthia’s full name (she only used her first name on MySpace). 

This must have been some ode, as the town became furious:

The community reacted violently to the publication of the Ode. Appellants received death threats and a shot was fired at the family home, forcing the family to move out of Coalinga. Due to severe losses, David closed the 20-year-old family business.

Because the information was published on MySpace.com, there could not be a cause of action for invasion of privacy.

The court held that publishing the ode on MySpace.com defeated any theory that the newspaper’s republication of the ode was an invasion of privacy. The court explained:

Cynthia’s affirmative act made her article available to any person with a computer and thus opened it to the public eye. Under these circumstances, no reasonable person would have had an expectation of privacy regarding the published material. As pointed out by appellants, to be a private fact, the expectation of privacy need not be absolute. (Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 915.) Private is not equivalent to secret. (M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 632.) “[T]he claim of a right of privacy is not ‘“so much one of total secrecy as it is of the right to define one’s circle of intimacy — to choose who shall see beneath the quotidian mask.”’ Information disclosed to a few people may remain private.” (Ibid., fns. omitted.) Nevertheless, the fact that Cynthia expected a limited audience does not change the above analysis. By posting the article on myspace.com, Cynthia opened the article to the public at large. Her potential audience was vast.

The court also held that the fact Cynthia removed the Ode from her online journal in six days does not change its analysis. “The publication was not so obscure or transient that it was not accessed by others.” The court also held that because Cynthia published the ode under only her first name on MySpace, but then the newspaper republished it under her first and last name is irrelevant. The court said her identity was readily ascertainable from the MySpace page – primarily because she posted her picture on the site.

While not directly an employment law case, the holding definitely has ramifications for employees who post information on the Internet. As discussed previously here and here, employers can view and possibly act upon information employees list on the Internet. This holding provides further support that employees (as everyone) should be very careful in what they post on the Internet.