Published by LawTechie - June 5, 2012 - LawTechie

Internet LawThe District Court for the District of New Jersey has ruled that employers “forcing” access into their employees’ private Facebook accounts as a means for gleaning info to serve as basis for termination may constitute an actionable invasion of privacy. Ehling v. Monmouth-Ocean Hospital Service Corp., 11-cv-03305 (DCNJ, Decided May 30, 2012).

In Ehling, the plaintiff was a nurse at defendant hospital who posted some not very nice things on her private Facebook account about how the paramedic staff should not have saved a wounded shooter that they picked up from a nearby crime. Her post:

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.

Opinions may differ with regard to murderous sociopaths, but the above post is, perhaps, not something a hospital would want to be associated with in any case. So one of Ehling’s managers allegedly “coerced” one of her co-workers, a Facebook friend, to allow him to “shoulder surf” and see what Elhing had been posting on her Facebook wall. The manager/hospital then used the wall post as a basis to terminate Ehling’s employ with the hospital.

On a motion to dismiss Ehling’s privacy invasion claims, the Court ruled that “Plaintiff may have had a reasonable expectation that her Facebook posting would remain private, considering that she actively took steps to protect her Facebook page from public viewing.”

Takeaway: Setting aside the fact that certain states (now Maryland) are passing laws to prevent employers from coercing employees to share the content of their private social media accounts, employers should be careful about how they form their basis for a termination. In sum, if it seems like it should be private, then you should treat it as private.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.

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