The latest Facebook lawsuit involves an ambulance company that took action against two employees for posts on those employees’ respective Facebook pages.
A paramedic for Monmouth-Ocean Hospital Service Corp (MONOC) lost a federal court lawsuit that alleged her employer illegally accessed and used a Facebook post to discipline her. Stated in the affirmative, an ambulance company properly disciplined an employee for a post she made on Facebook. Now for the rest of the story.
In the aftermath of a shooting incident at the Holocaust Museum in Washington, D.C., paramedic Deborah Ehling posted the following on her Facebook page:
An 88 yr old sociopath white supremacist opened first 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 YOU THINKING? And 2. This was your opportunity to really make a difference! WTF???? And to the other guards…go to target practice.
One of Ehling’s Facebook friends forwarded the post to one of MONOC’s managers.
After MONOC management was alerted to the post, Plaintiff was temporarily suspended with pay, and received a memo stating that MONOC management was concerned that her comment reflected a “deliberate disregard for patient safety.” In response, Plaintiff did what many employees faced with discipline are doing these days and filed a complaint with the National Labor Relations Board (“NLRB”). After reviewing the evidence the NLRB found that MONOC did not violate the National Labor Relations Act. The NLRB also found that there was no privacy violation because the post was sent, unsolicited, to MONOC management.
After several other disciplinary issues, Ehling was terminated. She sued alleging discrimination, wiretap violations, FMLA violations, and privacy violations. The crux of her lawsuit, though, was that MONOC illegally accessed her Facebook posting without her consent in violation of the federal Stored Communication Act. She was wrong.
MONOC did not violate the Stored Communications Act (or the Electronic Communications Privacy Act) because Ehling’s co-worker who forwarded the posting to management lawfully possessed it. He was an intended recipient of the electronic communication and had the lawful right to provide a copy to MONOC. This is good news for employers.
Hopefully this ends these types of lawsuits where plaintiffs allege that their employer illegally accessed their Facebook page.
Matt Austin is a Columbus, Ohio lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Austin@LaborEmploymentOSHA.com.