Employer use of social media information in employment decisions has received much attention in the past couple of years. As we have previously reported, several states have passed laws precluding employers from asking for employee or applicant Facebook passwords, and the National Labor Relations Board has on several occasions considered Facebook material as a potential exercise of rights under the National Labor Relations Act (http://www.nlrb.gov/national-labor-relations-act). On the other hand, an employer properly terminated an employee for misuse of FMLA when the employee’s Facebook posts showed the employee had not been honest about her alleged serious health condition. A recent case introduces a new wrinkle into use of Facebook material in making employment decisions: the federal Stored Communications Act (SCA).
The SCA is part of the Electronic Communication Privacy Act of 1986, which was intended to afford privacy protection to private electronic communications transmitted via an electronic communication service and stored electronically. The SCA provides both criminal and civil liability including recovery of actual or statutory damages (of at least $1,000) plus potential punitive damages. However, the SCA does not apply with respect to conduct authorized by the person or entity providing the electronic communications service, or by a user of the service with respect to the communication intended for that user (commonly referred to as the “authorized user” exception).
In the recent case, the employee claimed that information she has posted to her Facebook that resulted in her termination was protected by the SCA. Specifically, the former employee alleged that the hospital employer violated the SCA by improperly accessing her private Facebook wall post that implied that paramedics should have let a shooter of visitors to a D.C. museum die. The Hospital argued that the SCA did not cover her Facebook wall posts, or alternatively, if the posts were covered that the Hospital was exempt from liability under the Act as an “authorized user” because a co-worker of the employee, who was her Facebook friend, voluntarily forwarded a manager at the Hospital screen shots of the employee’s wall post.
The court concluded that the employee’s Facebook wall posts were electronic communications protected by the SCA because the material in question was available only to the employee’s Facebook friends because of the privacy settings the employee had placed on her Facebook account. Despite this finding, the court also found the Hospital was exempt from liability as an authorized user because the employer had obtained the Facebook material through a co-worker of the employee who was Facebook friends with her and had forwarded, on an unsolicited basis, screenshots of the employee’s Facebook wall postings. Specifically on the issue of voluntariness, the court found persuasive that the co-worker was personal friends with the Hospital manager, the Hospital manager never solicited the screenshots or asked to be kept apprised of the employee’s Facebook wall posts, there was no evidence that the co-worker was coerced or pressured to provide the screenshots, and there was no evidence that the co-worker received or expected privileged treatment for providing the screenshots.
In the ever-increasing realm of Facebook issues relating to employment decisions, the recent case suggests still more takeaways for employers: (1) although the SCA was passed before the creation of the Internet, courts are increasingly tasked with applying current (and rapidly changing) computer and networking technology (such as Facebook in this case) to the SCA; (2) employee private Facebook wall posts, or other social media postings are likely protected by the SCA; (3) employers cannot coerce or pressure employees to monitor other employee’s private social media postings; and (4) employers generally are not required to disregard an employee’s private social media posting if the copies of the postings are voluntarily provided by an authorized recipient of the posting.