Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law. In Part 3 today: If an employee’s Facebook post can reasonably support an adverse job action, does it matter how the employer acquired the post?
Two interesting cases were decided this summer, both of which highlight different ends of the spectrum when it comes to prohibited acts under the federal Electronic Communications Privacy Act (“ECPA”). As its name suggests, the ECPA was passed in 1986 in order to protect the privacy of certain electronic communications. Title II of the ECPA contains the Stored Communications Act (“SCA”), which prohibits certain access to electronic communications that are deemed to be in “storage”.
Ehling v. Monmouth-Ocean Hospital – August 20, 2013
In one case out of the federal court in the District of New Jersey, we find that an employer does not get in trouble when it acts on a Facebook post that was given to management by a “friend” of the employee who made the post. The court began the decision with the understatement of the year: “Facebook is a widely-used social-networking website.” Really? The plaintiff employee posted a statement to her Facebook wall (her privacy settings limited access to her wall to only her Facebook friends) that resulted in her being temporarily suspended with pay, and receiving a memo stating that management considered the post to be a “deliberate disregard for patient safety.” The post had been sent, unsolicited, to management.
The NLRB found that the suspension did not violate any “protected concerted activity” rights, which then lead the employee to sue in court to claim that the employer “violated the SCA by improperly accessing her Facebook wall post[.]” The court initially found that non-public Facebook wall posts are covered by the SCA when the Facebook user limits her privacy settings. However, in this case, the court found that the “authorized user exception” applied as a full defense because the individual who showed the post to management was an intended/authorized viewer of the post (i.e., one of the employee’s Facebook friends) and was not coerced by management into doing it. Thus, management was only a passive recipient of the post upon which the company relied for the suspension.
Two months earlier, a materially different set of facts resulted in a very different outcome, this time in the context of an arbitration between a union employee and the U.S. Department of Homeland Security. Mr. Trapp worked as a border control agent in Arizona, and maintained a Facebook account with settings always on “private”. A supervisory agent heard from another individual that Trapp may have been posting inappropriate comments, and, consequently, the supervisor created a Facebook account under the name of “Layla Shine” and sent a friend request to Trapp (at some point I’m assuming you’re getting the irony of the claimant’s name “Trapp”).
Trapp testified that the friend request was accompanied by a picture of a female, whom he thought was someone he had met in the past. When the friend request was accepted, the supervisor copied certain posts, which were then relied upon by the agency to support an adverse charge against Trapp. The arbitrator found that “private” Facebook posts are entitled to the protection of the SCA, and that no statutory exception or defense applied. Specifically, the supervisory agent was found to have violated SCA by violating Facebook’s terms of use when creating a fake account and making a friend request under a false name.
Employer Take Away: What should you as an employer take away from this development?
Issues involving the SCA go to the heart of your company’s ability to access, monitor, and act on social media posts by your employees. However, as these two decisions re-affirm, how you obtain the information you intend to rely on is just as critical as what you obtain and what you do with the information that you’ve obtained. It is one thing to take action based on social media posts that were innocently brought to your attention. It is quite another thing to take affirmative steps to surreptitiously get the private posts.
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.
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 
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