As demonstrated by a recent federal court case out of New Jersey, employers must be cautious when taking disciplinary action based on an employee’s online or social networking presence. In Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D.N.J. Aug 20, 2013), the plaintiff alleged that it was a violation of the federal Stored Communications Act of 1986 (the “SCA”), 18 U.S.C. §§ 2701-11 for her employer to fire her based on Facebook “wall” posts that a coworker shared with management. Although the court ruled in favor of the employer because the posts were voluntarily provided to the company, the decision leaves the door open to potential employer liability for reviewing or accessing employees’ social media information under other circumstances.

Background
The plaintiff in Ehling worked as a registered nurse and paramedic for the defendant, a non-profit hospital. In the summer of 2009, the plaintiff posted her reaction to the shooting of a guard at the Holocaust Memorial Museum. In her post, the plaintiff implied that the paramedics at the scene should not have saved the life of the shooter – a white supremacist. While the plaintiff was not “friends” on Facebook with hospital management, she was online “friends” with coworkers. One of plaintiff’s coworkers saw the post and voluntarily alerted management. The employer expressed concern that the Facebook comment demonstrated a “disregard” for patient safety. Eventually, the plaintiff was terminated. The plaintiff argued that because she was not Facebook “friends” with her employer, her employer’s unauthorized access of her Facebook account was a violation of the SCA.

The Court’s Decision
The court determined that non-public Facebook posts are generally covered by the SCA because they are “electronic communications” that are intended to be private. With respect to the case at issue, however, the court held that the employer’s actions fell within the SCA’s “authorized use” exception. The employer in Ehling received the posts from someone who had authorization to access the plaintiff’s Facebook page. Furthermore, at no point did the employer ask for this information or pressure the coworker into providing it. The court found for the employer and granted summary judgment against the employee.

Takeaway For Employers
While Ehling is not binding on Minnesota courts, this case highlights the legal complications involved with monitoring or using employees’ social media information. The New Jersey case may also foreshadow how other courts might interpret the SCA as applied to employee social media accounts. It appears from the Ehling decision that an employer’s liability under the SCA will often depend on how the employer obtained the information in the first place. As such, employers should be sure that any access of employees’ social media account information is authorized.

If you are an employer and have questions about regulating or accessing employees’ social media accounts, please contact one of the Minnesota employment law attorneys at Trepanier MacGillis Battina P.A.