“I’m the Boss. What can I see?”
As I represent employers of many different industries and of all business sizes, I am frequently asked to keep clients up to date and informed on new policies and court rulings that might affect their rights to access employee social media. Technology and Social Media Sites have become increasingly influential not only in our private lives but our work environments as well. So what can the Boss access?
The answer is slowing evolving and though anything less than clear, privacy is a key theme in a recent case from a U.S. District Court, that makes a distinction between private and public usage of social media sites such as Facebook.
After paramedic, Deborah Ehling was suspended from her job at Monmouth Ocean Hospital Service Corp. (MONOC), for a Facebook post the corporation disapproved of, Deborah took the company to court. Deborah was being penalized for having criticized Washington D.C. paramedics about the manner in which they handled the fatal shooting at U.S. Holocaust Memorial Museum. Part of Ehling’s post read:
“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.”
MONOC viewed this post as “a deliberate disregard for patient safety.”
Deborah’s Facebook posts were “private’ in that they were only posted to be available to her Facebook “friends”, not the public at large. But the post was leaked to management by Tim Ronco. Ronco was Deborah’s colleague and Facebook friend. He would snap screen shots of Deborah’s postings and without solicitation, he would send them over to management. After management received the snap shots they were sent to Stacy Quagliana, executive director of administration at MONOC.
Private Posts are Private – Sort of.
The court did rule that Deborah’s postings were private under the Stored Communications Act, and thus they were protected. However, authorized viewers of Deborah’s posts, including her Facebook friends, could share the postings with whomever they wished. Furthermore, Ronco was not obligated by any person or persons of authority to share such information. He did so freely and of his own will. Thus, the court ultimately ruled in favor of Monmouth Ocean Hospital Service Corp. Digital privacy lawyer, David Straite, eloquently stated, “The court said there’s no liability because she authorized the spy to see the posts.”
Because no information was coerced from Ronco, MONOC was not liable for invading Deborah’s privacy.
Liability in this case was “one step short of coercion.” Had MONOC consciously sought to invade Deborah’s privacy they would have been liable for lawyer fees and punitive damages.
The takeaways from this case are many, but include:
- Employees – Don’t think your “private” Facebook “Friend’s Only” posts are private. They are not. Any friend authorized to read your post is free to republish your post. The recipient is then free to act on that post.
- Employers – You may read and act upon, but do not demand or take by coercion, your employees’ private Facebook posts.
Employee Policy Manual provisions – or employment agreement clauses – clearly delineating Social Media rights and duties may be helpful in providing clarification to both workers and bosses over what can and cannot be accessed and used in the world of Social Media.