Lawful Employer Investigations via Facebook . . . Sort of

New Jersey became the 12th state in the U.S. to enact a so-called “Facebook privacy” law yesterday, when Gov. Christie signed the bill into law. Keeping with the theme, here’s a post about an interesting new decision from a federal court in the Garden State, Ehling v. Monmouth-Ocean Hospital Service Corp., No. 11-03305-WJM (D.N.J. Aug. 20, 2013).how_to_permanently_delete_or_deactivate_facebook_account_thumb

Ehling worked for Monmouth-Ocean Hospital as a registered nurse and paramedic. She was not exactly a dream employee from management’s perspective. She was President of the Union and, in that capacity was “regularly involved in actions intended to protect [hospital] employees.” For example, she filed complaints with the state and federal EPA over the hospital’s use of a certain disinfectant that allegedly caused health problems for employees. She also testified on behalf of another employee is a wage-and-hour lawsuit.

Ehling, of course, had a Facebook account, which was viewable only to her Facebook friends. Although she was “friends” with many of her coworkers, she was not Facebook friends with any managers at the hospital.

For reasons that are not explained in the court’s opinion, one of Ehling’s Facebook friends, Ronco, took it upon himself to start taking screenshots of Ehling’s Facebook wall and sending them to his real-life pal, Caruso, who happened to be a manager in another department.

One of Ehlings posts included commentary about a shooting by a white supremacist at the Holocaust Museum in Washington D.C. Ehling “blame[d] the paramedics” who saved the shooter. She complained that the paramedics should not have come to the shooter’s rescue and the other guards should “go to target practice.” When management found out about the post, Ehling was temporarily suspended with pay.

Ehling, as you may imagine, filed a complaint with the NLRB, which, perhaps surprisingly, was dismissed. The Board found that suspension did not violate the National Labor Relations Act and that there was no privacy violation because the post was sent, unsolicited, to management.

Not to be deterred, of course, Ehling filed suit in federal court, asserting a laundry list of claims. The most interesting of those claims, however, are the claims brought under the Stored Communications Act (SCA) and an invasion-of-privacy claim. The hospital filed a motion to dismiss but the court denied it, finding that, because the law regarding social media is new, each case involving Facebook privacy claims must be reviewed on a case-by-case basis. (For the record, I disagree with that conclusion.)

So the case went forward. After discovery, the hospital again filed a motion for summary judgment. The court granted the motion as to the SCA claim and the privacy claim. But it got to those decisions in a most belabored way.

With respect to the SCA claim, the court first determined that non-public Facebook posts are “stored electronic communications” under the SCA. Although the SCA is a terribly complicated statute, the tremendous level of detail the court went through to reach this conclusion surprises me. The answer seems fairly obvious but perhaps that’s only the case in my over-simplified view of the statute.

Next, the court had to decide whether the hospital was “authorized” to view the posts. The court concluded that, because Ronco was Ehling’s Facebook friend, he was an authorized user, so he was able to “authorize” the hospital to view any post he could view.

All of this sounds right. But here’s the part that troubles me. Caruso (the manager), never viewed or accessed Ehling’s Facebook page. All he saw were screenshots, taken by Ronco and either emailed or printed out. I have trouble with the idea that an image printed onto a piece of paper can constitute a “stored electronic communication.” Come again? A piece of paper is an electronic anything? How can that be?

Although I think the court reached the right conclusion, I think it got there via an overly complicated and somewhat troubling analysis.  My friend, Venkat Balasubramani, at the Technology & Marketing Law Blog, seems to agree.

P.S. Ehling was suspended-not terminated. Hence, she was, as far as we know, still employed throughout the entire ordeal. The Facebook post was 2009, the court opinion came out this month in 2013.  Talk about awkward.  And, worse, a retaliation claim waiting to happen, no doubt.  TGIF!

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