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Don't Ask, But Do Tell...

In today’s litigious employment law world, it is common place to Google an employee, and obtain information about his or her conduct through public social media. It is not unusual to find “interesting” information posted on someone’s Facebook page (in addition to finding out what they ate for breakfast, lunch, and dinner). But how far can an employer go to “mine” for information on its employees? A recent decision by the United States District Court in New Jersey suggests that an employer could violate the Federal Stored Communication Act (“SCA”), 18 U.S.C. §§ 2701-2711if it   proactively attempt to obtain information from an employee’s Facebook account by asking the employee’s Facebook friends who have access to the employee’s private Facebook information., Ehling v. Monmouth-Ocean Hospital Service Corp., 2013 WL 4436539, D.N.J., NO. 11-CV-03305-WJM (August 20, 2013).

The SCA provides that whoever “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system” shall be liable for damages. 18 U.S.C. §§ 2701(a); 18 U.S.C. §§ 2707(providing for civil liability). However, there are exceptions to the SCA for “authorized users” wherein the SCA “does not apply with respect to conduct authorized (1) by the person or entity providing the wire or electronic communications services; [or] (2) by a user of that service with respect to a communication of or intended for that user. 18 U.S.C. §§ 2701(c).

The Monmouth-Ocean Hospital Service Corp. (“MONOC”) hired Ms. Ehling as a nurse and paramedic. She became the president of the employees’ union, and frequently found herself taking positions against MONOC for the benefit of the employees. Not related to her union actions, but rather to her personal employment record, Ms. Ehling found herself the subject of numerous disciplinary infractions (such as for being tardy, or failing to work and citing unsupported FMLA reasons). Ms. Ehling received a temporary suspension with pay after MONOC received unsolicited screenshot copies of the Plaintiff’s Facebook postings from one of the Plaintiff’s co-workers whom the Plaintiff had friended on Facebook. The Plaintiff did not friend anyone in a management position from her employer. The posting that led to the suspension was:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards . . . . go to target practice.

MONOC suspended the Plaintiff because they found the comment reflected a “deliberate disregard for patient safety.” 

The Plaintiff filed a complaint with the NLRB in response to the suspension, but the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that MONOC did not violate any of the Plaintiff’s rights to privacy because the Facebook posts were sent unsolicited to MONOC’s management. The evidence was undisputed that the Plaintiff’s Facebook friend independently decided to provide the Plaintiff’s Facebook posts to MONOC’s management, and that MONOC’s management had never requested that the friend keep them appraised of the Plaintiff’s Facebook activity.

Subsequently, the Plaintiff filed suit in the federal court, alleging amongst other things, that MONOC violated her rights under the SCA. The District Court held that the SCA covered the non-public Facebook posts. However, the court concluded that MONOC was still not liable in this matter because the SCA’s exception for an “authorized user” applied. In this case, access to the Plaintiff’s Facebook post was authorized by a Facebook user (the Plaintiff’s co-worker) with respect to a communication intended for that user. The post was intended for that user because the Plaintiff’s Facebook settings were adjusted to allow her posts to be visible and intended to be viewed by her Facebook friends, including the user in question. The exception would not apply if the authorization was coerced or provided under any pressure or duress. Thus the District Court implicitly held that the employer would have violated SCA if it had directed, or otherwise took steps to have the Plaintiff’s Facebook friend appraise them of the Plaintiff’s Facebook posts. The SCA provides for civil liability and monetary damages, including reasonable attorney’s fees.