New Jersey Court’s Decision Provides Roadmap For Access To Employees’ Restricted Social Media Content

by Littler
Contact

With New Jersey poised to become the twelfth state to enact a social media password protection law and scant case law addressing the circumstances when and how an employer can lawfully access employees’ restricted social media content, last week’s decision by a federal district court in New Jersey provides much-needed guidance for employers on the question whether and when they can use an employee’s restricted social media content, provided by a co-worker, to impose discipline.  That question is critical for managers, in-house employment counsel and human resources professionals because disgusted co-workers frequently “rat out” employees who abuse or embarrass their employer on restricted social media pages or lie to their managers and then post evidence of their fibs on their restricted social media pages. 

The New Jersey decision, Ehling v. Monmouth-Ocean Hospital Service Corp., provides a classic example of this fact pattern.  The plaintiff in the case was a paramedic at Monmouth-Ocean Hospital Service (MONOC) in New Jersey.  After news media reported that a deranged 88-year old had killed a security guard at the Holocaust Museum in Washington, D.C., the plaintiff could not resist dashing off the following post:

"An 88 yr old sociopath white supremacist in the Washington, D.C. Holocaust Museum this morning shot and killed an innocent guard (leaving children).  Other guards opened fire.  The 88 yr old was shot.  He survived.  I blame the DC paramedics.  I want to say 2 things to the DC medics.  1.  WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!  And to the other guards . . . go to target practice." (emphasis supplied).  This post appeared on a Facebook news feed to each of plaintiff’s 300 Facebook friends.  One of those Facebook friends, also a paramedic at MONOC, was a real world friend of a MONOC manager.  The Facebook friend forwarded the post quoted above and other posts from the plaintiff’s Facebook wall to the manager/friend.  The manager – in turn – shared plaintiff’s posts with MONOC’s Executive Director of Administration.

Concerned about the post, MONOC management disciplined the plaintiff.  The hospital suspended her with pay and sent her a memo expressing concern that her comment demonstrated “deliberate disregard of patient safety.”  Plaintiff, who at that time was the President of New Jersey’s Professional Emergency Medical Services Association (the Union), challenged this discipline before the National Labor Relations Board (NLRB).  The NLRB determined that the discipline did not violate the National Labor Relations Act (NLRA), likely because the plaintiff’s post did not speak to the terms or conditions of her employment with MONOC or involve concerted activity among MONOC employees.  The NLRB also determined that MONOC had not violated plaintiff’s privacy.

Not to be deterred, plaintiff raised her allegation of a privacy violation in a subsequent lawsuit filed in federal district court in New Jersey after MONOC terminated her employment in February 2012.  In her complaint, plaintiff alleged that MONOC had gained access to her “friends only” Facebook page because a “member of upper management summoned a MONOC employee, who was also one of [the plaintiff’s] Facebook friends, into his office” and “coerced, strong-armed and/or threatened the employee into accessing his Facebook account on the work computer in his supervisor’s presence.”  Based on this allegation, plaintiff asserted claims under the federal Stored Communications Act (SCA) and for common law invasion of privacy.  The New Jersey court granted summary judgment in MONOC’s favor on both claims and, in the process, provided important guidance for employers regarding access to employees’ restricted social media content.

As background, the SCA protects from unauthorized access only “electronic communications” in “electronic storage” at an “electronic communication service,” provided the communications are not “readily accessible to the general public.”  The court ruled that content on a restricted Facebook page satisfies each of these elements because (a) a Facebook post is an electronic communication; (b) Facebook is an electronic communication service; (c) Facebook archives user posts, thereby satisfying the requirement of “electronic storage”; and (d) a “friends only” Facebook page, by definition, is not publicly accessible.  Although this decision is not binding precedent, the New Jersey court is the second federal district court to reach this conclusion.  Consequently, unless and until contrary case law develops, employers should presume that the SCA protects all Facebook posts that are not publicly available.  Employers also should note that whether social media posts are in “electronic storage” could vary depending on whether and how the host archives content.  As a result, the SCA likely, but does not necessarily, protect all restricted social media content.

Even if the SCA protects social media content, access to that content by any authorized user is perfectly lawful.  In the plaintiff’s case, the co-worker and Facebook friend who disclosed the content to MONOC management was an authorized user because he was a legitimate Facebook user and the plaintiff had invited him to view her Facebook wall by sending him a friend request.

Plaintiff attempted to rebut MONOC’s defense that her Facebook friend and co-worker was authorized to view her restricted content by alleging that MONOC coerced the co-worker into accessing plaintiff’s Facebook wall.  In advancing this argument, plaintiff relied implicitly on another New Jersey case, Pietrylo v. Hillstone Restaurant Group, d/b/a Houston’s Restaurants. There, a jury found that Houston’s violated the SCA because two managers used a hostess’ log-in credentials to access a restricted MySpace page where co-workers were posting negative comments about management and customers.  When ruling on post-trial motions, the trial court determined that sufficient evidence supported the jury’s verdict because the hostess testified at trial that she thought “something bad might happen” to her if she did not disclose her log-in credentials to the managers.  According to the trial court, that testimony demonstrated sufficient “coercion” for the jury to reject Houston’s defense that the hostess had authorized the managers’ access. 

The MONOC case presents starkly different facts.  Plaintiff’s coworker and Facebook friend had independently and voluntarily disclosed plaintiff’s Facebook posts to the MONOC manager.  There was no evidence that the manager pressured or coerced the plaintiff’s co-worker in any way.  In addition, the manager did not ask the co-worker for his log-in credentials or “shoulder surf” his Facebook page.  Accordingly, the court held that MONOC had proved its defense that the co-worker and Facebook friend was authorized to access plaintiff’s restricted social media content. 

While the SCA claim was the principal focus of the court’s attention, the court also granted summary judgment for MONOC on the plaintiff’s common law invasion of privacy claim. The court reasoned that an intrusion on a private sphere is a fundamental element of that claim.  However, MONOC did not intrude on the plaintiff’s Facebook page:  MONOC did not access the page using her log-in credentials or the log-in credentials of one of plaintiff’s Facebook friends, nor did MONOC direct plaintiff’s co-worker to access the page.  Rather, MONOC, the court found, was “the passive recipient of information that [it] did not seek out or ask for.”  Because there was no actionable intrusion, the court did not reach a particularly important and pressing issue, i.e., whether plaintiff’s Facebook page was private for purposes of a common law invasion of privacy claim given that plaintiff permitted 300 “friends” to access her page, and none of those “friends” — as was demonstrated by the co-worker — had any obligation to keep plaintiff’s Facebook posts confidential.

Employers can take away the following important lessons from this case:

  • Social media content that is publicly available is not subject to privacy protection under the federal Stored Communications Act, common law, or any other U.S. law or regulation.
  • Employers do not violate an employee’s privacy rights when a co-worker independently volunteers screen shots or other information concerning an employee’s restricted social media content.
  • If an employer makes a follow-up request to a volunteer to provide additional information from a restricted social media page, the employer should establish the voluntariness of the volunteer’s subsequent actions, i.e., inform the volunteer that no adverse employment action will be taken if the volunteer declines the request and no special benefit will be conferred if the volunteer provides additional information, and document this agreement in writing.
  • Employers should note that even after obtaining a volunteer’s free and voluntary consent to provide additional information, the volunteer should be instructed to provide only the minimum information relevant to the purposes of the investigation.  There is, however, some degree of  risk because the propriety of this type of access has not yet been addressed.
  • Finally, employers should recognize that accessing restricted social media content directly -- either by obtaining the employee’s or a co-worker’s log-in credentials or by “shoulder surfing” on the employee or a co-worker -- raises significantly higher legal risks than receiving screen shots or oral reports from a co-worker about an employee’s restricted social media content.  Before pursuing the riskier method of investigation, an employer should determine whether the relevant jurisdiction has enacted a social media password protection law and, regardless, consult legal counsel on how to structure the investigation to reduce legal risk.

Written by:

Littler
Contact
more
less

Littler 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):
hide

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.

Security

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 info@jdsupra.com. 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: info@jdsupra.com.

- 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.