Accessing Employees’ Private Facebook Posts Can Get Employers Into Hot Water

by Hirschfeld Kraemer LLP

A U.S. District Court Judge in New Jersey has just found that private Facebook postings by an employee about her employer are subject to the Stored Communications Act, 18 U.S.C. §§2701-11 (SCA).  The ruling raises significant potential hurdles for employers who act on private information posted by their employees on social media sites.

In Ehling v. Monmouth-Ocean Hospital Service Corp., Deborah Ehling, was a registered nurse and paramedic and she was also the President of the labor union which represented employees at the New Jersey hospital in which she worked.  On June 8, 2009, a white supremacist had opened fire at the Holocaust Memorial Museum in Washington, D.C., killing a security guard.  The paramedics who responded to the scene performed emergency medical procedures on the shooter and apparently saved his life.  Upon hearing about this news story, Ehling made a Facebook post suggesting that those paramedics should have let the shooter die.  Upon learning of the Facebook post, the hospital immediately suspended Ehling.

The hospital learned of Ehling’s Facebook post from another employee who was an online “friend” of Ehling.  On Facebook, Ehling had set the security with regard to her “news feed” to “private,” which meant that only friends of hers could see those feeds.  Her co-worker, who was a Facebook friend, accessed her postings and voluntarily provided them to hospital management.  There was no evidence that the hospital pressured him to do so or even asked him to do so.

Ehling sued for violation of the SCA, among other things, claiming that the hospital unlawfully accessed her private Facebook news feed.  Ultimately, the District Court granted summary judgment to her employer, dismissing all of her claims including the SCA claim.

In so doing, however, the court reached a startling and unprecedented ruling: private Facebook postings are electronic communications that are subject to the SCA.  Ehling only lost on her SCA claim because the co-worker who accessed her private Facebook posting provided it to her supervisors voluntarily and thus was an “authorized user” under the statute.

This ruling is significant for several reasons.  As an initial step, it is important to differentiate between the different types of social media out there.  Of the three most common social media sites used by professionals – Facebook, Twitter, and Linked In – Twitter posts are, by definition public and Facebook posts can be public depending on the privacy settings chosen by the person posting.  In the case of those publicly available posts, the SCA almost certainly will never apply and, as a result, employers are free to use information gleaned from those posts.

By contrast, often times, Facebook and Linked In users regulate the privacy of their posts and, in cases where posts are not publicly available, employers who access private posts without authorization or by pressuring “friends” of an employee to disclose the contents of private posts may be liable for damages under the SCA.  In this case, the judge suggested that had the hospital pressured Ehhling’s co-worker into providing it with the contents of her private Facebook posts, his decision would have been different.  Employers should be mindful of crossing that line when faced with the impulse to review private Facebook  or Linked In posts.

To be sure, that impulse can be hard to resist.  Social media sites are often a treasure trove of information about employees and applicants, particularly those who employers regret hiring after the fact.  Because of the rather large red flags raised by this decision, employers should be very careful that when an employee or applicant’s social media site is private, they do not coerce or pressure “friends” into providing the needed access to the site.


Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.