A federal district court in New Jersey recently addressed a question about which employers have long speculated, but had no answer, whether an employee can successfully assert an invasion of privacy tort claim against an employer that makes unauthorized access to the individual's Facebook account. In Ehling v. Monmouth-Oceanside Hosp. Service Corp. , the Court ruled that such a claim survived a motion to dismiss, as the reasonableness of a person's expectation of privacy is determined on a case-by-case basis and the employee's efforts to confine access to her Facebook account to her "friends" may have contributed to such a reasonable expectation.
The plaintiff in Ehling, a nurse/paramedic who was the president of the local union, had a Facebook wall where she made postings. Only her Facebook "friends" had approval to access and view her postings. No member of hospital management was an approved "friend." The plaintiff alleged that a hospital supervisor coerced an employee who was a "friend" into accessing his Facebook account in the supervisor's presence, and that the supervisor then viewed and copied the plaintiff's Facebook postings. One such posting - which criticized EMTs who saved the life of a white supremacist who had shot and killed a guard at the Holocaust Museum, and criticized other museum guards for having not fatally wounded the gunman - was the basis for the plaintiff's discharge. The hospital also sent the posting to New Jersey licensing authorities, which the plaintiff alleged harmed her reputation and put her nursing license and paramedic certification at risk.
The Court denied the hospital's motion to deny the invasion of privacy claim, holding that a person who limited access to Facebook postings to her designated "friends" might reasonably have an expectation of privacy that persons who were not approved "friends" would not access the postings.
Interestingly, the Court dismissed a claim based on a state statute designed to address the unauthorized accessing of electronic communications, the New Jersey Wiretapping and Electronic Surveillance Control Act. Following state court decisions, the Court ruled that the Act is limited to electronic communications which are in the course of transmission or are backup to such transmission, and that the posting at issue here did not fit either category, but was in post-transmission storage.