Employee Fired for “Private” Facebook Post
Plaintiff Deborah Ehling thought she could comment freely on Facebook because she limited her posts to a restricted group of her “friends” and her posts were not available to the general public. She was wrong. When her employer learned of her controversial posts and terminated her, she thought she had recourse. She was wrong. In an important ruling for employers, the District Court of New Jersey recently dismissed Ehling v. Monmouth-Ocean Hospital Service Corp., et al., (August 20, 2013). This case put to the test the Federal Stored Communications Act, 18 U.S.C. §§ 2701-11 (“SCA”) as applied to social media content in the workplace.
The SCA is part of the Electronic Communication Privacy Act of 1986, which was intended to provide privacy protection to private communications transmitted and stored electronically. The SCA provides both criminal and civil liability including recovery of damages plus the potential to recover punitive damages. However, the SCA does not apply with respect to information that was authorized by the sender of the electronic communication (a/k/a the “authorized user” exception). This exception was critical to Ehling’s claims.
On June 8, 2009, Ehling posted on her personal Facebook page a controversial topic arising from a widely publicized shooting at a museum. What Ehling did not know was that her Facebook “friend” and co-worker had begun (of his own free will) sending screenshots of plaintiff’s Facebook page to their employer. When the employer fired Ehling as a result of the post, she filed suit asserting a variety of claims, including that the employer violated the SCA by improperly accessing her Facebook post about the shooting.
Conceding that very few courts have addressed this issue, the District Court held that the SCA did in fact protect the employee’s Facebook posts because she selected privacy settings limiting access to her Facebook friends. However, the District Court granted summary judgment in favor of the employer based on SCA’s “authorized user” exception. Since Ehling’s co-worker was a Facebook “user” who had his own Facebook account, was Facebook “friends” with plaintiff and therefore an “intended” recipient of her Facebook wall posts, the employer was “authorized” to view plaintiff’s Facebook post.
While the applicability of the SCA to Facebook wall posts may have been a novel issue for the District Court in this case, the dilemma faced by employers who discover inappropriate employee social media content is common in the modern workplace. As a result, the employer is in the difficult situation of reacting to information that it did not necessarily intend on reading or, at the very least, did not actively solicit. The takeaways from this decision for the employer include:
- “private” social media commentary are probably protected by the SCA;
- employers cannot directly monitor or solicit co-workers to monitor private social media postings; and
- employers are not expected to disregard “private” social media posting made available to the employer voluntarily by an authorized recipient.
Employers should view this case with cautious optimism as courts continue to wrestle with social media related litigation.