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Employees’ Facebook Wall Posts Might Be Protected by Stored Communications Act

By Allen Smith  9/6/2013
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In one of the first decisions to address whether the federal Stored Communications Act (SCA) protects employees’ Facebook wall posts, a district court in New Jersey ruled on Aug. 20, 2013, that it does. Nevertheless, the court determined that the employer at the center of the case fell within an exception to the SCA because the organization did not seek out the wall post screen shots that a co-worker “friend” sent to it.

Deborah Ehling, a registered nurse and paramedic for Monmouth-Ocean Hospital Service Corp., had her Facebook privacy settings limited to show wall posts only to her Facebook friends. Ehling was in a position of influence, as president of the Professional Emergency Medical Services Association—New Jersey.

Another paramedic, Tim Ronco, decided to take screen shots of her Facebook wall and print or e-mail them to a hospital manager, Andrew Caruso, though Caruso never asked Ronco to provide this information. Once the manager received copies of Ehling’s Facebook posts, he passed them on to Stacy Quagliana, the hospital’s executive director of administration.

Inflammatory Wall Post

On June 8, 2009, Ehling posted the following statement on her Facebook wall: “An 88-yr-old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88-year-old was shot. He survived. I blame the DC paramedics. I want to say two things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF !!!! And to the other guards….go to target practice.”

After the hospital’s management was alerted to the post, Ehling was temporarily suspended with pay and received a memo stating that management was concerned that her comment reflected a “deliberate disregard for patient safety.”

Suspension Challenged

Ehling filed a complaint with the National Labor Relations Board, which found that the hospital did not violate the National Labor Relations Act.

She then filed a lawsuit under the SCA, arguing that the hospital violated this law by improperly accessing her Facebook wall post. She contended that the SCA protects her wall posts because she selected privacy settings limiting access to her Facebook page to her friends.

Turning first to her argument that the SCA applies to wall posts, the court noted that “very few courts have addressed this issue.” But it held that wall posts generally are covered by the SCA because they are electronic communications transmitted via an electronic communication service, are stored electronically and, with privacy settings like Ehling’s, are not public.

Authorized Use

However, the law’s “authorized user exception” applied because Ronco was authorized as a Facebook friend to view the wall posts and the information he provided to the company was not solicited.

Ehling maintained that a supervisor summoned Ronco into his office and coerced him into accessing his Facebook account on the work computer in the supervisor’s presence. The court, though, determined this never happened.

She also asserted that Ronco must have shared the information about her for “compensation or privileged treatment or a really good deal.” The court dismissed this argument as “pure speculation.”

FMLA Claim Sunk

In addition to her union work, Ehling was often late to work and, according to the hospital, used leave under the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act without completing the required leave paperwork. Because she never filled out reasonable-accommodation forms, which her employer provided twice, she was fired.

The court rejected Ehling’s claim that the hospital violated her right to time off under the FMLA. She even admitted that her employer provided her with multiple FMLA leaves.

She objected to the fact that she was granted leave only after the hospital rejected her FMLA paperwork on several occasions. However, the hospital “clearly had a right to request FMLA certifications and recertifications from plaintiff and to reject the insufficient certifications that she submitted,” the court said. Moreover, the hospital was “extremely accommodating of plaintiff’s many FMLA requests.”

Once, for example, Ehling skipped her evening shift to attend a metaphysical seminar featuring purported psychic medium James Van Praagh. When asked why she wouldn’t be at work, she cited FMLA reasons.

Another time she was dispatched to respond to a 911 call for a critically ill 20-month-old child. She refused to do the emergency transport and placed her unit out of service, citing FMLA reasons.

Ehling v. Monmouth-Ocean Hospital Service Corp., No. 2:11-cv-03305 (D. N.J. 2013).

Professional Pointer: Under this court’s reasoning, if an employer required a worker to disclose Facebook wall posts of another employee, the SCA would protect the wall posts.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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