Following a growing recent national trend, Judge Martini of the District Court of New Jersey issued summary judgment to Defendants Monmouth-Ocean Hospital Service Corporation (“MONOC”) and two of its senior management employees on August 20, 2013, in a claim brought by a former nurse and EMT, Deborah Ehling, who accused MONOC of retaliation and other claims.
Ehling’s claims, in part, arose from MONOC’s alleged improper access of Ehling’s private Facebook posts. Holding that MONOC did not improperly access those posts under the Federal Stored Communications Act, 18 U.S.C. §§2701-11, (“SCA”) or New Jersey’s common law invasion of privacy tort, the District Court found that MONOC’s receipt of the communications from an authorized user satisfied an exception to the SCA.
Specifically, Ehling sought damages arising out of MONOC’s viewing and discipline of Ehling for a Facebook post she made in June 2009. The post in question related to a shooting at the National Holocaust Museum in June 2009. In that Facebook post, Ehling wrote:
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 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 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. (Emphasis in original.)
Following that post, one of Ehling’s Facebook friends and another MONOC employee, Tim Ronco, provided a screenshot copy of the post to a MONOC manager, Andrew Caruso. Caruso, in turn, turned over this Facebook post (as well as others he received from Ronco) to Stacy Quagliana, one of the named defendants and MONOC’s Executive Director of Administration. After MONOC learned of the post, it temporarily suspended Ehling, with pay, and sent a memo that MONOC management was concerned that Ehling’s comment—made by a registered nurse and EMT—displayed a “deliberate disregard for patient safety.” Ehling unsuccessfully filed a complaint with the NLRB, who also found that no privacy violation occurred because MONOC was sent the post and did not acquire it on its own. Nearly three years later in February 2012, MONOC terminated Ehling, for cause, when she failed to return to work after her yearly FMLA leave time expired.
Ehling, however, argued that her termination and suspensions (other suspensions were discussed in the decision but not here) were pretext for MONOC retaliating against her for her role as president of the union within MONOC as well as her complaints to the State of New Jersey and OSHA for MONOC’s use of a particular chemical at its facility.
Rejecting Ehling’s argument that a SCA violation occurred, the Court held that, while Ehling’s non-public Facebook wall post was covered by the SCA, one of the exceptions applied. Specifically, the District Court rejected Ehling’s argument, finding that MONOC did not violate either the SCA or state law when it received paper copies of Ehling’s Facebook posts from one of Ehling’s Facebook friends.
Judge Martini’s decision is important to employers for a number of reasons. First—like other recent Federal decisions—this decision continues to recognize that a distinction exists between public and private social media posts and that an employer cannot be liable for viewing public posts or receiving private posts from a third-party. See, e.g. “Nevada District Court Finds No Reasonable Expectation of Privacy in Private Twitter Posts”, Erik B. von Zeipel, Sept. 10, 2013, https://www.tradesecretslaw.com/2013/09/articles/social-media-2/nevada-district-court-finds-no-reasonable-expectation-of-privacy-in-public-twitter-posts/, (commenting on Rosario v. Clark County School District, No. 2:13-cv-362, 2013 U.S. Dist. LEXIS 93963 (Nev. Jurisdictional. 3, 2013); see also United States v. Meregildo, 883 F. Supp. 2d 523, 525 (S.D.N.Y. 2012) (holding that Facebook posts disseminated to the public are not protected by the Fourth Amendment).
Second, the decision provides direction to employers that they may receive even private social media posts, but that they may not coerce or pressure their employees to provide such information. In offering such guidance, the court wrote: “Access is not authorized if the purported ‘authorization’ was coerced or provided under pressure.” (Op. at p. 10.) In reaching that conclusion, the court relied on another New Jersey District Court decision, Pietrylo v. Hillstone Rest. Grp., No. 06-5754, 2009 WU 3128420, at * 3 (D.N.J., Sept. 25, 2009). While the court does not explain what might constitute coercion or pressure, employers should be mindful that its acts cannot be construed as either.
Finally, when coupling this decision with the various other social media decisions handed down over the last few years, a growing national trend is apparent. Essentially, courts are holding that employees lack a reasonable expectation of privacy in public social media posts and that even some private posts might become “public” if acts are taken by others to publish those posts to the public. A dividing line seems to be forming wherein employers cannot take covert actions to discover the content of employer social media posts, but, if those posts are disseminated publicly, the employer is likely not liable for disciplining an employee for violating its code of conduct through such social media posts.