A New Jersey federal court recently held that an employee’s Facebook wall posts were protected by the Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., in one of the first cases to analyze the SCA’s application to the Facebook wall.  Ehling v. Monmouth-Ocean Hospital Service Corp.., No. 2:11-cv-3305 (WMJ) (D.N.J. Aug. 20, 2013).  An important factor in the court’s ruling was the fact that the employee had configured her privacy settings to restrict her posts to her Facebook “friends.”

The court found that the employer had not violated the SCA by viewing the employee’s wall, however, because a co-worker, who was one of her Facebook friends, showed the post to their employer without any prior prompting by the employer.  

This ruling provides further reason for employers to avoid unauthorized access to an employee’s social media activities.  The court’s holding is consistent with the passage by 11 states of laws prohibiting employers from demanding social media passwords from employees.  But employers that learn of social media activity by employees through passive means may still be able to take action based on that information.

The plaintiff in the case was Deborah Ehling, who was hired by a New Jersey hospital as a registered nurse and paramedic in 2004.  She later became president of the union of professional emergency medical services workers in the state.  Ehling maintained a Facebook account with approximately 300 friends, including several co-workers, and she set her Facebook privacy settings so that only her friends could see posts on her Facebook wall. None of Ehling’s managers or supervisors at the hospital were her Facebook friends.   

In 2009, Ehling posted a statement on her Facebook wall criticizing emergency response paramedics at a shooting at the Holocaust Museum in Washington, D.C., who reportedly saved the life of the shooter.  A co-worker who was her “friend” on Facebook printed a screenshot of the post and gave it, unsolicited, to Ehling’s manager, who passed it on to hospital administrators.  Ehling was temporarily suspended with pay and warned that her post showed “deliberate disregard for patient safety.”  Ehling filed a complaint with the National Labor Relations Board, which found no privacy violation and no unfair labor practice, because the hospital management had not itself accessed or solicited the wall post.

Ehling was later terminated for attendance reasons, and she brought suit alleging invasion of privacy under New Jersey state law as well as violations of the SCA, among other claims.

The SCA was enacted in 1986.  Analyzing the application of the SCA to Facebook wall posts, the court found that the posts were subject to the Act:  Facebook wall posts are electronic communications (they are made over the internet); transmitted via an electronic communication service (Facebook allows users to send and receive electronic messages to each other through emails and posts); maintained in electronic storage (Facebook archives all old posts and emails); and not accessible to the general public.  On the final element, the Court emphasized that the question of “accessibility” to the general public would turn on a user’s privacy settings. 

Here, Ehling configured her settings so that her posts were not available for public viewing.  The Court noted that its analysis was in accord with another federal court decision, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010).

Although the wall posts were covered by the SCA, the Court held that the hospital did not violate the SCA by reading Ehling’s post because the “authorized user” exception under the SCA applied to the posts.  Ehling’s post was viewed by a co-worker Facebook friend who was authorized to see her posts; he then printed the post and gave it to hospital management unsolicited.  The Court therefore dismissed Ehling’s SCA claim. 

The judge also ruled against Ehling on her invasion of privacy claim, finding that hospital management was a passive recipient of information.  Thus, there was no intentional, offensive intrusion on Ehling’s solitude or seclusion. The court found that Ehling “voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.  This may have been a violation of trust, but it was not a violation of privacy.” 

Although the hospital prevailed in the suit, the case serves as an important caution to employers against unauthorized access to employees’ social media activities that are not open to the general public. 

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Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.