Employees’ non-public postings protected in workplace

facebookPlaintiff Deborah Ehling was a registered nurse and paramedic. Defendant MONOC is a non-profit hospital service corporation  providing emergency medical services to the citizens of  New Jersey.  Plaintiff was hired by MONOC in 2004 as a registered nurse and paramedic.  Plaintiff’s claims in this case arose out of an incident involving Plaintiff’s Facebook account where in she was disciplined for posting commentary that a particular person involved in a shooting should have allowed to die on the scene.  Facebook pages are public. However, Facebook has customizable privacy settings that allow users to restrict access to their Facebook content. Access can be limited to the user’s Facebook friends, to particular groups or individuals, or to just the user.  Plaintiff’s posting was set to a privacy setting where only authorized “friends” could view the posting.  Plaintiff filed suit alleging that the fellow employee who was authorized to view the posting was coerced by a supervisor to see it after the employer learned about the posting.

On June 8, 2009, Plaintiff posted the following statement to her Facebook wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning 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.

During the 2008-2009 timeframe, Plaintiff maintained a Facebook account and had approximately 300 Facebook friends. Plaintiff selected privacy settings for her account that limited access to her Facebook wall to only her Facebook friends. Plaintiff did not add any MONOC managers as Facebook friends. However, Plaintiff added many of her MONOC coworkers as friends, including a paramedic named Tim Ronco. Plaintiff posted on Ronco’s Facebook wall, and Ronco had access to Plaintiff’s Facebook wall. Unbeknownst to Plaintiff, Ronco was taking screenshots of Plaintiff’s Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Ronco and Caruso became friends while working together at a previous job, but Ronco never worked in Caruso’s division at MONOC. The evidence reflects that Ronco independently came up with the idea to provide Plaintiff’s Facebook posts to Caruso. Caruso never asked Ronco for any information about Plaintiff, and never requested that Ronco keep him apprised of Plaintiff’s Facebook activity.

After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that Plaintiff’s comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence, the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.

Facebook users typically do not post information to their Facebook walls with the intent to delete it later. Instead, Facebook designed its website so that its servers would save this data indefinitely. As more and more wall posts are added, earlier wall posts move lower and lower down on the user’s Profile Page, and are eventually archived on separate pages that are accessible, but not displayed.

In Count 1, Plaintiff asserts a claim for violation of the Federal Stored Communications Act (or “SCA”), 18 U.S.C. §§ 2701-11. Plaintiff argues that Defendants violated the SCA by improperly accessing her Facebook wall post about the museum shooting. Plaintiff argues that her Facebook wall posts are covered by the SCA because she selected privacy settings limiting access to her Facebook page to her Facebook friends. Defendants disagree and argue that, even if the SCA applies, the facts in this case fall under one of the SCA’s statutory exceptions. The first issue before the Court was whether the SCA applies to Facebook wall posts. Very few courts have addressed this issue.

In 1986, Congress passed the Electronic Communications Privacy Act, which was intended to afford privacy protection to electronic communications.  It is worth noting that this act was passed in light of the present technology that existed in 1986 where the internet was embryonic in stage amongst military and academic institutions.  Despite the advance of technology, the language of the SCA has remained static and its interpretation is now in question by the leap of such technology.  The SCA provides that whoever “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or (2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters or prevents the authorized access to a wire or electronic communication while in electronic storage in such a system” shall be liable for damages. 18 U.S.C. § 2701(a); 18 U.S.C. § 2707 (providing for civil liability under the statute).

The Court founds that, when users make their Facebook wall posts inaccessible to the general public, the wall posts are “configured to be private” for purposes of the SCA.  Having concluded that the SCA applies to the type of communication at issue in this case, the Court next evaluates whether either of the SCA’s statutory exceptions apply. The SCA “does not apply with respect to conduct authorized (1) by the person or entity providing a wire or electronic communications service; [or] (2) by a user of that service with respect to a communication of or intended for that user.” 18 U.S.C. §2701(c).   The Court finds that the authorized user exception (the second exception) applies in this case.  Plaintiff provided no evidence to support her theory that access to her Facebook page was unauthorized.  The evidence supported the fact that there was no coercion by a supervisor upon the authorized fellow employee who could see the page.  The authorized employee copied the posting and voluntarily presented it to management.  Hence, there was no unauthorized access to Plaintiff’s facebook profile. Therefore, summary judgment was granted to Defendants.

The case however was a victory for internet and social site users in that it was determined that Facebook or other social sites are subject to the SCA.  Furthermore, it was found that the statute does proscribe coercion or such other acts of unauthorized access.  This is a key opinion in employment law such that employers cannot coerce an employee into accessing another employee’s facebook profile.

http://www.insideprivacy.com/Ehling%20v.%20Monmouth-Ocean%20Hospital%20%28SCA%29.pdf

http://www.dmlp.org/blog/2013/federal-court-finds-stored-communications-act-applies-facebook-wall-posts

 

 

About Roland

Roland was born in Nashville, Tennessee and raised in Mt. Juliet, Tennessee. The first few years he resided in Paris, France with his mother who was French. In Hendersonville, he attended Beech Senior High School where played soccer and studied in the honors curriculum. Subsequently, he pursued two majors in political science and economics while graduating in three years.

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