Facebook postings by employees
have increasingly become a factor in employment discrimination lawsuits. In some of my recent cases, employers were
made aware of an employee’s threats of violence, workplace misconduct or other
inappropriate actions when a co-worker, who also was a Facebook “friend”,
brought the Facebook post to the employer’s attention. Such posts can be powerful evidence in
defending against a discrimination lawsuit and proving that any adverse employment
action was for a legitimate non-discriminatory reason.
However, a recent ruling by a
federal District Court in New Jersey strongly suggests that employers who
actively solicit Facebook friends to disclose the postings of an employee could
be in violation of the Federal Stored Communications Act (“SCA”), 18 U.S.C. §§
2701-11.
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. The
statute further provides that "[i]t shall not be unlawful . . . [to]
access an electronic communication made through an electronic communication
system that is configured so that such electronic communication is readily
accessible to the general public." In other words, the SCA covers: (1)
electronic communications, (2) that were transmitted via an electronic
communication service, (3) that are in electronic storage, and (4) that are not
public.
In Ehling v. Monmouth-Ocean Hospital Service Corp. , the plaintiff was a nurse who maintained a Facebook
account and had approximately 300 Facebook friends. Plaintiff selected privacy
settings for her account that limited access to her Facebook wall to only her
Facebook friends. Plaintiff did not add any hospital managers as Facebook
friends. However, Plaintiff added many of her coworkers as friends. Unbeknownst
to Plaintiff, a hospital paramedic who was one of her Facebook friends was
taking screenshots of Plaintiff's Facebook wall and printing them or emailing
them to Plaintiff’s manager.
The evidence in the case showed
that the paramedic independently came up with the idea to provide Plaintiff's
Facebook posts to the manager, who had never asked the paramedic for any
information about Plaintiff and had never requested to be apprised of
Plaintiff's Facebook activity.
Plaintiff was subsequently temporarily
suspended when the hospital learned of her Facebook post where she criticized
paramedics in Washington, D.C. for saving the life of a gunman involved in a
fatal shooting. The post read as
follows:
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.
The plaintiff received a memo
from the hospital explaining the reason for the suspension was the hospital’s
concern that her Facebook comment reflected a "deliberate disregard for
patient safety." In response, Plaintiff filed a complaint with the
National Labor Relations Board ("NLRB"). After reviewing the
evidence, the NLRB found that the hospital did not violate the National Labor
Relations Act. The NLRB also found that there was no privacy violation because
the post was sent, unsolicited, to hospital management. The plaintiff subsequently filed suit in
federal court, alleging the hospital violated her rights under the SCA.
In its ruling, the District
Court held that that non-public Facebook wall posts are covered by the SCA, because:
(1) Facebook wall posts are electronic communication, (2) they are transmitted
via an electronic communication service, the Facebook wall posts are in
electronic storage, and (4) Facebook wall posts that are configured to be
private are, by definition, not accessible to the general public, and that the
touchstone of the SCA is that it protects private information.
However, the District Court
ruled that the hospital was not liable because one of the SCA’s exceptions
applied, which exempted conduct authorized (1) by the person or entity
providing a wire or electronic communications service; [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 Court held that exception
applied because the plaintiff had authorized the paramedic to have access to
her Facebook wall by making him a “friend” and that the information the
paramedic supplied to hospital management was completely unsolicited.
The District Court implicitly
held that if the hospital had directed the paramedic or any other of the
plaintiff’s Facebook friends to monitor and keep them appraised on Plaintiff’s
Facebook activity, it would have constituted a violation of the SCA due to the
hospital seeking unauthorized access.
The SCA provides for civil liability under the statute and an employer
would be subject to monetary damages.
While it may be tempting for
employers to utilize the Internet to monitor employees’ conduct, the lesson from
this case is that employers should never request that co-workers or any other individuals
access an employee’s private social media. As related in previous articles, employers also need to be aware that overly broad social media policies could expose them to potential liability under the National Labor Relations Act.
Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com.
