August 27, 2013

Accessing Employees’ Private Facebook Posts Can Get Employers Into Hot Water

A U.S. District Court Judge in New Jersey has just found that private Facebook postings by an employee about her employer are subject to the Stored Communications Act, 18 U.S.C. §§2701-11 (SCA).  The ruling raises significant potential hurdles for employers who act on private information posted by their employees on social media sites.

In Ehling v. Monmouth-Ocean Hospital Service Corp., Deborah Ehling, was a registered nurse and paramedic and she was also the President of the labor union which represented employees at the New Jersey hospital in which she worked.  On June 8, 2009, a white supremacist had opened fire at the Holocaust Memorial Museum in Washington, D.C., killing a security guard.  The paramedics who responded to the scene performed emergency medical procedures on the shooter and apparently saved his life.  Upon hearing about this news story, Ehling made a Facebook post suggesting that those paramedics should have let the shooter die.  Upon learning of the Facebook post, the hospital immediately suspended Ehling.

The hospital learned of Ehling’s Facebook post from another employee who was an online “friend” of Ehling.  On Facebook, Ehling had set the security with regard to her “news feed” to “private,” which meant that only friends of hers could see those feeds.  Her co-worker, who was a Facebook friend, accessed her postings and voluntarily provided them to hospital management.  There was no evidence that the hospital pressured him to do so or even asked him to do so.

Ehling sued for violation of the SCA, among other things, claiming that the hospital unlawfully accessed her private Facebook news feed.  Ultimately, the District Court granted summary judgment to her employer, dismissing all of her claims including the SCA claim.

In so doing, however, the court reached a startling and unprecedented ruling: private Facebook postings are electronic communications that are subject to the SCA.  Ehling only lost on her SCA claim because the co-worker who accessed her private Facebook posting provided it to her supervisors voluntarily and thus was an “authorized user” under the statute.

This ruling is significant for several reasons.  As an initial step, it is important to differentiate between the different types of social media out there.  Of the three most common social media sites used by professionals – Facebook, Twitter, and Linked In – Twitter posts are, by definition public and Facebook posts can be public depending on the privacy settings chosen by the person posting.  In the case of those publicly available posts, the SCA almost certainly will never apply and, as a result, employers are free to use information gleaned from those posts.

By contrast, often times, Facebook and Linked In users regulate the privacy of their posts and, in cases where posts are not publicly available, employers who access private posts without authorization or by pressuring “friends” of an employee to disclose the contents of private posts may be liable for damages under the SCA.  In this case, the judge suggested that had the hospital pressured Ehhling’s co-worker into providing it with the contents of her private Facebook posts, his decision would have been different.  Employers should be mindful of crossing that line when faced with the impulse to review private Facebook  or Linked In posts.

To be sure, that impulse can be hard to resist.  Social media sites are often a treasure trove of information about employees and applicants, particularly those who employers regret hiring after the fact.  Because of the rather large red flags raised by this decision, employers should be very careful that when an employee or applicant’s social media site is private, they do not coerce or pressure “friends” into providing the needed access to the site.