
Also, state common law often recognizes a vague notion of a "reasonable expectation of privacy," and potential liability for invasion of that privacy (often called "intrusion upon seclusion"). In my employment law class at Penn State, we cover the case of Ehling v. Monmouth-Ocean Hosp. Service Corp. The employee alleged an invasion of privacy where an authorized Facebook "Friend" handed over her posts to management.
The Court rejected her claim because the person who actually accessed her Facebook page was properly authorized as a "Friend" (some friend!). However, the Court was careful to note: "The evidence does not show that Defendants obtained access to Plaintiff's Facebook page by, say, logging into her account, logging into another employee's account, or asking another employee to log into Facebook." This suggests that unauthorized access may give rise to a cause of action for invasion of privacy.
In short, accessing an employee's Facebook page can be dicey. Employers should proceed with caution (and possibly some consultation with counsel).
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