Accessing An Employee’s Social Media Account Without Bad Intent

An interesting decision was just issued by a federal court in Illinois, holding that an employee is entitled to have a jury hear her claims that her employer unlawfully accessed and used her social media accounts.    Even when there does not appear to have been any malevolent motivation on the company’s part.

The decision in Maremont v. Susan Fredman Design Group, Ltd. notes that the employee worked as the Director of Marketing, Public Relations and E-Commerce for a Chicago-based interior design firm.   As part of her marketing- and social media-related responsibilities, she created and edited the company’s blog – “Designer Diaries: Tales From The Interior.”  She also became well known in the design community, including a Twitter following of about 1,250 people.   The court pointed out that her Twitter and Facebook accounts were personal accounts, and not for the benefit of the company.  However, she did use both accounts to promote the company’s work and link to the company’s web site, and did access her accounts from her office computer (and store her passwords on the company’s server).

The employee sustained serious injuries in a car accident.   During her hospitalization, she learned that the company had posted entries on her Facebook page and had posted on her Twitter account to continue promoting the company’s business.   The employee asked the company to refrain from doing so, and the company refused.   Although the employee returned to her job temporarily, she was ultimately forced to stop working because of her injuries.   She did, however, sue the company under various theories premised on the company’s access to and use of her social media accounts.

The court denied the company’s attempt to summarily dismiss the complaint in its entirety, and specifically left intact her claim under the federal Electronic Communications Privacy Act of 1986 (“ECPA”).   The ECPA provides a claim when there is, among other things, “unauthorized, intentional access to communications that are held in electronic storage.”   The court held:

 “[T]here is undisputed evidence in the record that Defendants accessed [the employee’s] personal Facebook account and accepted friend requests at least five times[.]   Moreover, evidence in the record reveals that Defendants posted seventeen Tweets to [the employee’s] personal Twitter account during the relevant time period.  As such, there are disputed issues of material fact whether Defendants exceeded their authority in obtaining access to [the employee’s] personal Twitter and Facebook accounts.”

Employer Take Away:   What should you as an employer take away from this development?   

Interestingly, the court did dismiss the employee’s claim for breach of her common law right to privacy, holding that Facebook and Twitter posts are generally not “private.”    Nevertheless, this case offers a good reminder that all employers must be careful about accessing an employee’s social media accounts, even when you think that you are simply continuing the assigned job functions of an employee who is unable to fulfill them (temporarily or otherwise).    And even if there is no bad intention on your part, and, in fact, no intention at all to surreptitiously monitor or access your employee’s accounts.

Stay tuned for tomorrow’s two-part end-of-the-year wrap up….

About The Author

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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