[author: Ted Olsen]

When an employee posts derogatory comments about her employer or its patients on a fellow worker's Facebook page, the employee has no reasonable expectation of privacy and cannot complain of an invasion of privacy when she is fired because of the post and her defiant response to counseling about the post.

In Roberts v. CareFlite,[1] a medical transport company fired an EMT who posted on a friend's Facebook page that she "wanted to slap" an out-of-control patient whom she had recently transported.  The company's compliance officer's sister saw the posting and reported it to the compliance officer.  Then the compliance officer attempted to counsel the EMT about the inappropriateness of her posting, as it could result in the suspension of her license.  Ms. Roberts responded to the counseling with a defiant, "Yeah, whatever!"  The employer's CEO learned of the posting and the employee's rude reaction to the counseling efforts, and Ms. Roberts was fired.

The EMT sued for invasion of privacy in two forms - intrusion upon seclusion and public disclosure of private facts.  After losing at the trial court, she appealed only the dismissal of the intrusion upon seclusion claim.  The Texas Court of Civil Appeals ruled against her, concluding that the employer's review of the plaintiff's comments on a coworker's wall, readily viewable by third parties, did not intrude upon her seclusion.

The plaintiff also argued that the National Labor Relations Board has ruled that social media communications regarding working conditions can be protected concerted activity under the National Labor Relations Act.  http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.  But the Texas appellate court logically ruled that this did not support state law invasion of privacy liability.  Likewise, the court ruled that the plaintiff's argument that the employer was "out to get her" was irrelevant to her privacy claim.

[1] Roberts v CareFlite, 02-12-00105-CV (Tex. Civ. App. Oct. 4, 2012).