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Digital Dilemmas

A court's recent ruling illustrates just how tricky the Stored Communications Act can be. The ruling highlights the uncertainty that companies face in cases involving electronic communications, but experts say the decision should also be instructive for employers.

Tuesday, October 1, 2013
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The Stored Communications Act was designed -- as the name implies -- to protect the privacy of stored electronic communications.

Enacted in 1986 -- long before the Internet and even longer before social media -- it's safe to say digital communication has expanded over the years, and the proliferation of Facebook, Twitter and the like makes navigating the legal minefields associated with the SCA a much tougher task for employers in 2013.

A New Jersey district court's recent ruling illustrates just how tricky the SCA can be, but could also help employers and HR better understand the legislation's nuances, experts say.

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp. (MONOC), the court found that -- while the SCA does protect employees' Facebook wall posts -- the defendant company fell within an exception to the Act because it didn't seek out the information from the plaintiff's Facebook page that eventually got her suspended from her job.

According to court records, Deborah Ehling -- a registered nurse and paramedic at MONOC -- posted the following to her Facebook wall on June 8, 2009:

"An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE http://www.hreonline.com/images/115812956digitaldilemmasL.jpgYOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards … go to target practice."

Among Ehling's approximately 300 Facebook friends was Tim Ronco, another MONOC paramedic and one of many co-workers Ehling counted as friends on the social networking site. Unbeknownst to Ehling, Ronco took screenshots of her aforementioned wall post, and presented them to Andrew Caruso, a manager at MONOC, in both email and hard copy form.

Court records indicate Caruso "never asked Ronco for any information about [Ehling], and never requested that Ronco keep him apprised of [her] Facebook activity. The evidence reflects that Ronco independently came up with the idea to provide [Ehling's] Facebook posts to Caruso."

Upon receiving copies of the post in question, Caruso passed them on to the hospital's executive director of administration, and Ehling was temporarily suspended with pay, in addition to receiving a memo stating the hospital's management was concerned that her comment reflected a "deliberate disregard for patient safety."

After initially filing a complaint with the National Labor Relations Board -- which found the hospital did not violate the National Labor Relations Act -- Ehling brought a lawsuit under the Stored Communications Act, alleging her wall posts were protected under the SCA, as she had selected privacy settings that afforded access to her page only to her Facebook friends.

In the suit, Ehling maintained Ronco was summoned to Caruso's office and coerced into accessing his Facebook account in Caruso's presence. The court determined this wasn't the case; a determination that proved pivotal in clearing MONOC of wrongdoing in its suspension of Ehling.

The district court ultimately ruled that, while the Stored Communications Act protects employees' Facebook wall posts, MONOC qualified for an exception to the Act in this case, as it did not seek out the screen shots Ronco presented to Caruso.

As noted by the judge in this case, few courts have addressed this aspect of the Stored Communications Act, "likely because most employees tend to file an unfair labor practice charge with the National Labor Relations Board for similar types of infractions," says Terri Stewart, an Atlanta-based attorney with employment and labor law firm Fisher & Phillips.

The NLRB, however, "has been active in the social media arena lately," adds Stewart.

As the Ehling case illustrates, however, employers do have ways to protect themselves and avoid liability in cases involving the SCA. Protection starts with an effective social media and electronic communications policy, says Stewart.

"There is no liability under the SCA for non-electronic access to information," she says. "Thus, if an employer has a company policy that prevents the employee from having an expectation of privacy in their office, the company could potentially take action against this employee based on that same information -- available electronically -- if it is accessible via hard copy in the employee's office.

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"Additionally, if someone brings the electronic, private information to the employer without the employer forcing or requiring the employee to provide it, there is no liability, as was the case in the recent New Jersey decision."

Nevertheless, employers must be very careful to avoid accusations of coercion, such as those leveled by Ehling, says Jonathan Segal, a Philadelphia-based partner in the employment, labor, benefits and immigration practice group at Duane Morris.

Managers and HR professionals, he says, must handle the matter delicately when an employee comes forward as Ronco did.

"In these instances, I don't think you say, 'I need to see [the Facebook post, for example], and if you don't give it to me, you're fired.' What you say is, 'You've raised a very serious issue, and the decision to share this information is entirely voluntarily. And, there will be no adverse consequences if you say no.' Then, you at least have an argument that you tried to stay in the spirit of the SCA."

HR should also periodically remind all employees, he says, that certain company rules apply with regard to social media -- even to "private" Facebook posts -- and that employees' personal social media activity could be subject to the organization's harassment, discrimination and other policies if they count co-workers as Facebook friends or Twitter followers, for example.

"The hope," says Segal, "is that someone will come forward if they've seen something."

HR may indeed start seeing more employees doing just that, says Evan Shenkman, a Morristown, N.J.-based member of Ogletree, Deakins, Nash, Smoak & Stewart's knowledge management department, who also serves as the firm's senior knowledge management counsel.

"In the past four or so years, we've seen more than 20,000 new federal cases [in which] social networking comes into play," says Shenkman. "And, with more employees using social media each year, the number of cases keeps rising. I can't imagine seeing anything other than a trend."

Stewart echoes Shenkman's prediction.

"As more employees become aware of the SCA," she says, "and more plaintiffs' attorneys become versed in the nuances of the SCA, these claims likely will increase. Because the use of social media by employees is only growing, one can only imagine that SCA claims will grow as well."

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