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With rare exceptions, such as highly skilled professionals or extremely talented athletes, the power relationship between employer and employee is inherently unequal. This is why labor laws have evolved over the years. You cannot, for example, work for less than minimum wage, even though you might be "willing" to do so. In the case of MySpace, YouTube, and Facebook, technology has raced ahead of legislation. Laws need to be enacted to protect the individual from the intrusion of employers into their off work site activities, unless such activities can be clearly demonstrated to be detrimental to the company.

There is little doubt that employers could find plenty of potential employees who would be willing to sign away their rights to a whole host of activities, but that doesn't mean they should be allowed to. Specifically, the courts should be extremely wary of any attempt by employers to curb their employees' ability to express themselves freely outside the workplace, especially on matters which do not have any direct bearing on the companies they work for. It is not in the public's interest, let alone that of the individual to stifle freedom of expression. A democratic society cannot long survive in such an environment. If corporations can suppress your ability to express yourself on these three websites, what prevents them from restricting other forms of expression? In the internet age, there is very little that cannot be found out about a person with a few mouse clicks. What if an employer could discover your political party affiliation through the internet, and fire you on the basis of that information? The chilling affect of allowing employers to act in an unrestrained manner on information simply because it is in the public domain is truly frightening!

Exceptions can be made where the employer can demonstrate that its own reputation may be damaged. For example, it would not be unreasonable to restrict an employee from making unflattering references to their employer on these sites, or to fire them for violating such an agreement. Another exception would be where an individual has such a high profile that she and the company she works for are inextricably linked. This would be the case for professional athletes or movie stars. However, these individuals already have "morals clauses" in their contracts, so restricting their expression on the internet is a natural extension of that principle.

To a certain extent, the genie is already out of the bottle. Passing laws against hiring or firing employees on the basis of information obtained on these websites is one thing, proving that was the basis for an employer's actions is another. Nonetheless, legislation would put employers on notice that such action will not be tolerated, and putting teeth in the laws with heavy fines would certainly have a chilling effect on attempts to circumvent the law.

Learn more about this author, Julian Glyck.
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