A recent case makes clear that employers can violate the federal Stored Communications Act of 1986 (the “SCA”) when they discipline employees based on the content of nonpublic Facebook “wall” postings – depending on how they obtain the information which serves as the basis for the discipline.

In Ehling v. Monmouth-Ocean Hospital Service Corp., the plaintiff was a hospital paramedic who alleged that her former employer had violated the SCA when it terminated her for posting a message on her Facebook “wall” which the hospital felt reflected “deliberate disregard for patient safety.” (In June 2009, a white supremacist shot and killed a guard in the Holocaust Memorial Museum in Washington, D.C. The white supremacist was shot in turn when other guards returned fire. Following the shooting, the plaintiff suggested on her “wall” that the paramedics who treated the white supremacist – and presumably saved his life – should have allowed him to die.)

At the summary judgment stage, the district court explained that – generally speaking – the SCA covers nonpublic Facebook “wall” posts because they are stored electronic communications that are transmitted via an electronic communication service. The district court held that an exception to the SCA applied in Ehling, however, because the hospital had learned of the post from one of the plaintiff’s co-workers who was a Facebook friend of hers. Because the co-worker was authorized to view the plaintiff’s “wall” and because the co-worker had voluntarily sent a screenshot of the post to the hospital, the district court determined that the hospital did not break the law when it terminated the plaintiff’s employment based on the content of the post.

Although the employer in Ehling prevailed, the case underscores once again that employers must be careful when it comes to disciplining their employees based on their employees’ use of Facebook and other social media.  Had the hospital asked the co-worker for a screenshot of the plaintiff’s post – or otherwise pressured the co-worker to provide the information in question – the outcome of the case could very well have been different.