The District Court of New Jersey recently denied an employer’s motion to dismiss a former employee’s causes of action for invasion of privacy following a supervisor’s alleged unauthorized access to the employee’s Facebook account. 

In Ehling v. Monmouth-Ocean Hospital Service Corp., the plaintiff, a registered nurse and paramedic, alleged that the defendants engaged in a pattern of retaliatory conduct as soon as she became President of the local union. Specifically, the plaintiff alleged that defendants gained access to her “private” Facebook account by having a supervisor summon another employee, who was “friends” with the plaintiff, into an office and coercing or threatening that employee into accessing their Facebook account so that the supervisor could view those posts which the plaintiff had restricted to only her “friends.”   Plaintiff went on to allege that the supervisor then viewed and copied plaintiff’s Facebook postings. One such post was in regard to a shooting that took place at the Holocaust Museum in Washington, DC and stated:

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 wasn’t to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a different! WTF!!!! And to the other guards…go to target practice.

Ultimately, in June 2009 the Hospital sent letters regarding the above posting to the New Jersey Board of Nursing and the New Jersey Department of Health, Office of Emergency Medical Services as it was concerned that Plaintiff’s Facebook posting showed a disregard for patient safety. Plaintiff alleged the letters were malicious and meant to damage her professionally.

The Court dismissed plaintiff’s New Jersey Wiretapping and Electronic Surveillance Control Act (“NJ Wiretap Act”) claim holding that the NJ Wiretap Act only protects those electronic communications which are in the course of transmission or are backup to that course of transmission. As plaintiff’s allegations involve a “live” posting, it did not fall under the purview of the NJ Wiretap Act. 

However, the Court went on to hold that plaintiff’s common law invasion of privacy claim involving defendants’ unauthorized “accessing of her private Facebook postings” could proceed. In relying on another New Jersey district court case which involved a supervisor’s asking an employee to gain access to a private social media account, the Court held that privacy determinations are made on a case-by-case basis, in light of all the facts presented. The Court went on to hold that the plaintiff had a plausible claim for invasion of privacy as she 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.   

As we have mentioned before, legal guidance involving the utilization of social media in employment decisions is ever evolving and employers must remain vigilant as courts continue to develop these cases.