Monday, February 26, 2018

New case involving employee Facebook privacy

PennLive reports on an interesting new case in my local jurisdiction (Middle District of Pennsylvania): Woman claims she was fired after co-workers snooped on her Facebook page. The plaintiff is an employee who claims that her co-workers accessed her Facebook account without authorization while she was out on vacation. She claims her employer terminated her for the Facebook content.

With the caveat that these are just allegations that have yet to be proven . . . unauthorized access of an employee's Facebook page is a no-no. For starters, it violates the Stored Communications Act, which generally prohibits unauthorized access of electronically stored communications. Even a supervisor pressuring an employee into handing over her password may create liability.

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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