The Legal Risks of Accessing an Employee’s Facebook Account

By Eric B. Meyer

There are 11 states with social media workplace privacy laws making it illegal for an employer to require that an employee or applicant fork over a social media login and password.

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).

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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.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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