The risks of accessing an employee’s Facebook account

Even if your state is one of the many that doesn’t have a statute specifying legal parameters for such actions, you’d be wise to tread lightly, lest you trudge into dangerous legal territory.

There are 11 states with social media workplace privacy laws making it illegal for an employer to require that an employee or applicant fork over a social media login and password.

If your company is in one of the other 39 states and assumes that it has the green light to engage in such shenanigans, you’d better check yourself before you do so, according to this recent New Jersey federal court decision.

The case involved a situation in which the plaintiff, a former employee of the defendant, alleged that a member of upper management required that another employee access the plaintiff’s Facebook account. Although these allegations didn’t bear fruit, the court warned that certain employer behavior could amount to “invasion of privacy.”

Violating the Stored Communications Act

Specifically, the court indicated that had the employer directly logged into the plaintiff’s Facebook account, logged into another employee’s account to view the plaintiff’s Facebook page, or asked another employee to log into Facebook in order to access the plaintiff’s Facebook page, then the employer would have violated the law.

Additionally, the court noted that non-public Facebook wall posts are covered by the Stored Communications Act. In this particular case, the employer avoided SCA liability because it never solicited one of its employees to access the plaintiff’s Facebook page. Rather, one of the plaintiff’s Facebook friends, an employee of the defendant, provided content from the plaintiff’s Facebook page to the employer all on his own.

A major lesson for both employers and lawyers

For employers: Beware of nosing around on any portions of an employee’s Facebook page that aren’t otherwise publicly accessible. This would seem to include doing any of the taboos described above—even if it’s part of a workplace investigation.

For lawyers: Have you ever tried doing a little Facebook due diligence on a plaintiff/defendant only to be stymied by his/her privacy restrictions? Have you then ever considered asking a Facebook friend of the party to access that information for you? Yeah, about that…

Eric B. Meyer is a partner in the labor and employment group of the Philadelphia-based law firm Dilworth Paxson. He writes The Employer Handbook, where a version of this article originally appeared.

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