Wednesday, September 11, 2013

With "Friends Like These . . .

Thanks so much to my friend and colleague, Ann Holden Kendell, for contributing this blog post!  

I asked Megan if I could write a guest blog post regarding a recent case from the U.S. District Court for the District of New Jersey.  This case involves the firing of an employee after her Facebook "friend" and co-worker shared her non-public entries with their mutual employer.  Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (WJM) (D.N.J. Aug 20, 2013).

Why did I want to do this?  In addition to being interested in this case as an employment lawyer and voyeur (this employee had a long disciplinary record and her brother ended up representing her when her original attorney withdrew), I was struck by how Megan could have written this opinion herself.  I have given many speeches to clients and organizations with Megan and have heard her social media presentations. 

Her guidance matches with the takeaways from this case.  In addition to other laws and invasion of privacy issues, the Federal Stored Communications Act (“SCA”) will apply to non-public Facebook posts. However, people with authorized access – i.e., a Facebook friend – may access the information.  In short, Deborah Ehling’s Facebook friend properly had access to her private posts.  He independently chose to pass that information on to their mutual employer.  This was another important piece of the case:  the evidence showed the employer did not force or coerce this "friend" to provide the information; the shared communication was unsolicited.  The court explained:

...the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else.

In light of how this all “went down,” the court found that the employer did not violate any statutory or tort law in terminating Ms. Ehling, and it dismissed her lawsuit.

Does this mean employers can do whatever they want?  Simply put, no.  The facts of this case worked out for the employer, but the facts of most cases are often moving targets and not fully known until the witness is under oath.  If this “friend” had indicated there had been some pressure (maybe even just a request) to turn over the Facebook posts, this likely would have turned out very differently.  Or, imagine if the “friend” suddenly received a raise or promotion after turning over the information…this would have looked shady and could have affected the outcome.    

Employers still need to use caution when using Facebook information in employment decisions. True, it's important to determine whether the information found is appropriate for use in an employment decision. But even before we get to that question, employers should pause to consider how it obtained the information. For example, were any underhanded means were used (such as deceit, coercion, etc.)? Was the information requested in good faith, but still in a manner that could suggest another person felt pressure to turn it over? Was it completely unsolicited, as it was in this case? These kinds of questions should guide an employer's analysis. At least that's what Megan tells people, and Judge Martini agreed.

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