By Eric B. Meyer
But, if a company in the other 39 states assumes that it has the green light to engage in these shenanigans, then check yourself before you do, according to this recent New Jersey federal court decision.
The case involved a situation where the plaintiff, a former employee of the defendant, alleged that a member of upper management required that another employee access the plaintiff’s Facebook account. While these allegations didn’t bear fruit, the court warned that certain employer behavior could amount to “invasion of privacy.”
Violating the Stored Communications Act
Specifically, the court indicated that had the employer directly logged into the plaintiff’s Facebook account, logged into another employee’s account to view the plaintiff’s Facebook page, or asked another employee to log into Facebook in order to access the plaintiff’s Facebook page, then the employer would have violated the law.
Additionally, the court noted that non-public Facebook wall posts are covered by the Stored Communications Act. (However, in this particular case, the employer avoid SCA liability because it never solicited one of its employee to access the plaintiff’s Facebook page. Rather, one of the plaintiff’s Facebook friends, an employee of the defendant, provided content from the plaintiff’s Facebook page to the employer all on his own).
A major lesson for both employers and lawyers
Employers: Beware of nosing around on any portions of an employee’s Facebook page that aren’t otherwise publicly accessible. This would seem to include doing any of the no-no’s described above — even if part of a workplace investigation.
Lawyers: Have you ever tried doing a little Facebook due diligence on a plaintiff/defendant only to be stymied by his/her privacy restrictions? Have you then ever considered asking a Facebook friend of the party to access that information for you? Yeah, about that…
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.