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Employment and Social Media (Part 2): Employee social media privacy rights under the Stored Communications Act

This blog article is part of a series on Employment and Social Media. Part 1 covers the right of an employer to directly request an employee’s social media access information–such as user names and passwords–in order to gain direct access to their accounts for information; Part 2 covers the limitations imposed by the Stored Communications Act (SCA) on the access and use by an employer of employee private social media information; and Part 3 covers the use by an employer of employee group discussions publicly posted online, including social media.

According to a survey by CareerBuilder, Inc. an employment consulting company, 39% of employers research employees and candidates on social media sites, and 43% of the surveyed employers reported that they had found something that made them reject a job candidate or fire an employee.

In examining employee or job applicant social media information, employers often look for comments that may uncover an individual’s undesired background, such as drug use or other illegal activity, discriminatory or harassing behavior, conduct pointing to dishonesty about education, capabilities or work history, and disparaging statements about the employer, among other information.

However, as a matter of good practice, employers must refrain from acting adversely against employees for reasons having nothing to do with work, and especially, they may not discriminate against employees and job applicants based on factors that are protected by federal, state, and local laws.

In addition, although there is no law in Florida overtly prohibiting an employer from requesting the username and password to the social media accounts of employees and job applicants (as discussed in Part 1 of this Employment and Social Media blog series), employers must secure lawful access or authorization to this information, or they may risk hefty penalties, including prison.

Federal and State Law Applicable to Stored Communications

At a federal and state level, the unauthorized access to private social media information of an individual is protected under the Stored Communications Act (SCA), which requires authorization prior to access and use of the information. In addition, an employer may not coerce an employee or job applicant into allowing access to their private social media information.

Specifically, the SCA limits an employer from accessing employee and job applicant social media information in certain circumstances. Section (a) of the SCA makes it unlawful for anyone to intentionally access without authorization a facility through which an electronic communications service is provided; or intentionally exceed an authorization to access such facility and thereby obtain, alter, or prevent authorized access to a wire or electronic communication while it is in the electronic storage in such system.

Under the SCA, the access to information is unlawful unless the conduct is authorized by the person or entity providing the electronic communications service, by a user of that service, or by certain governmental agencies. Therefore, to access an employee’s private social media information, an employer must be authorized by the employee or by someone with lawful access to the information.Untitled

For example, in the 2013 case of Ehling v. Monmouth-Ocean Hospital Service Corp., the United States District Court for the District of New Jersey found that the SCA provides employees with some privacy rights in their private Facebook posts. However, the court also ruled that if a co-worker who is also a Facebook friend of the employee voluntarily turns the employee’s posts to the employer, this privacy right is lost. In this case, the employee-plaintiff sued under the SCA after she was discharged based on her private Facebook posts, which offended the employer. The plaintiff had shared the posts privately with her Facebook friends, including a co-worker. The co-worker took screenshots of the posts and emailed them to the employer, resulting in the plaintiff being fired.

The court resolved that for SCA purposes, a private Facebook post is an electronic communication held in electronic storage on the Facebook servers, and Facebook posts set to “private” (not available to the general public) would be protected under the SCA. However, the court also held the employer was not liable to the employee in this case. It reasoned that the employer had authorization to view the posts, as it had received it from the plaintiff’s coworker when he provided the posts to the employer without coercion or payment.

Therefore, under the legal precedent set in the Ehling case, if an employer coerces an employee to provide access to the private Facebook posts of any employee, an SCA cause of action will likely lie.

At a state level, Florida law (Ch. 934 F.S. 934.21, “Unlawful access to stored communications; penalties”) generally follows the federal SCA provisions.

Penalties

The SCA provides for monetary damages, injunctions and attorney’s fees for violations of SCA provisions. It also provides for imprisonment of 1 to 10 years, depending on the nature of the offense. The equivalent Florida law penalizes the first offense as a misdemeanor and repeated violations as a felony of the third degree.

Best practices

Non-compliance with the federal and state stored communications laws could amount to serious consequences. Employers must establish sound policies to manage the access and use of employee and job applicant social media information. They should also educate their employees on the implications of violating these laws. Knowledgeable employment counsel will prove key in helping to prevent an employer from infringing the law when looking for access to employee social media information, and if the employer is faced with having to defend violation claims.

Employees must be cautious when posting information on social media that can be adverse to their employer or themselves. Like email, social-networking records can be legally subpoenaed and used as evidence. However, these records cannot be coerced by an employer or obtained without due authorization. Employees suspecting that their privacy rights have been infringed, or that they may have been wrongfully terminated on the basis of information either illegally obtained from social media, or applied in a discriminatory capacity, must consult with an employment attorney to better understand their rights, identify their claims, and assess their value.

Whether you are an employer, employee, or independent contractor, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing a social media access and violation situation and offer competent legal representation, if necessary. Click here to contact an attorney now.

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