Posted 09-09-2013

One of the big issues facing employers today is: when can we discipline an employee for comments on social media sites? A very recent case from the federal district court in New Jersey helps to answer that very concern. In Deborah Ehling v. Monmouth-Ocean Hospital Service Corps, No. 2:11-cv-03305 (WJM) (D.N.J. August 20, 2013), the court granted MONOC’s motion for summary judgment, dismissing among other claims Ms. Ehling’s claims of violations of her right to privacy and the Federal Stored Communications Act.

In 2009, Ms. Ehling was employed by MONOC as a paramedic, and posted the following on her Facebook page: “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.” A co-worker who was a “friend” took the post and showed it to management. Concerned about her lack of care for patient rights, she ultimately was disciplined for the post and later terminated for that and other reasons. Her complaint to the NLRB about retaliation for protected speech and right to privacy was dismissed by the Board, because the speech did not concern her working conditions and was not private.

On MONOC’s motion for summary judgment, 1 ½ years after the case was filed, the court held that Ehling’s right to privacy was not violated because her friend had a right to the communication and there was no evidence that management had coerced him to supply it to them. On the SCA (which is part of the Electronic Communications Privacy Act) claim, the court first held that the Act does apply to Facebook wall posts. However, it also held that the evidence showed that MONOC had not violated the Act because it did not acquire the post illegally, since it was voluntarily provided by one who had a right of access.

What this means to you:

This case is very important because it recognizes management’s right to use such posts to support discipline. It is clear that employers cannot force employees to hand over passwords, or to grant access to their private social media posts, for example by “shoulder surfing”. On the other hand, it is also clear that if an employee’s posts are public, i.e. not restricted to “Friends,” then the information is not subject to a claim of privacy and may be used as a basis for discipline (if it is not otherwise protected). And, if someone with a right to view the information then provides it to management, there likewise is no claim of privacy. The issue in such cases will always be whether it was truly provided voluntarily. Managers need to be very cautious, first, about even using such information if it comes to their attention and, second, about requesting or soliciting such information from others. As always, this case and situation emphasize the importance of partnering with HR and Legal before taking further action.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.