There are a lot of laws HR pros pay close attention to (FMLA, ADA, FLSA, etc.), but the Stored Communications Act typically isn’t one of them. That should change. 

The act prohibits the unauthorized access of individuals’ electronic communications and records that are intended to be private.

If you’re thinking this doesn’t apply to you because you’d never go snooping around employees’ email, you’re wrong. It also applies to something a lot of employers are taking very seriously these days: the Facebook activity of employees and job candidates.

A U.S. district court in New Jersey has ruled that “private” Facebook wall posts are communications that are protected by the Stored Communications Act.

In other words, if you’re not a Facebook “friend” of the worker or job candidate, you shouldn’t be viewing the person’s Facebook activity — especially, if what you find could be used to make decisions regarding the person’s employment status.

Employee fired after post was made public

The case that brought this issue before the court involves Deborah Ehling, a registered nurse and paramedic for Monmouth-Ocean Hospital Service Corp.

Ehling posted on Facebook that her fellow paramedics should’ve let a mass shooter die, rather than administering medical treatment.

The privacy settings on her Facebook page allowed only her “friends” to see the post. Some of her co-workers were “friends” with her on Facebook.

One of them saw the post about the shooter, printed it out and showed it to Ehling’s manager.

The post went into Ehling’s personnel file. Then later, after some performance problems, she was fired.

Following her termination, Ehling sued, claiming Monmouth-Ocean violated the Stored Communications Act by accessing her Facebook posts.

Close call for the company

After accessing her case, the district court ruled Monmouth-Ocean had not violated the act — but only because it was Ehling’s co-worker who took it upon himself to show a manager the Facebook post.

Because the firm didn’t know about or coerce Ehling’s co-workers to provide the info, it did nothing illegal, the court ruled.

Why is this case important? It shows the need to tread very carefully when accessing employees’ info on social media sites.

Remind managers they can’t do things like ask employees for their Facebook or Twitter passwords — or for them to change their privacy settings.

In addition, they can’t “shoulder surf” by forcing an employee to access another person’s page while they watch.

Cite: Ehling v. Monmouth-Ocean Hospital Services

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