Do Employees Have Protected Privacy Rights in Facebook Postings?

Making hiring decisions based on information found on social networking sites can be a problem. (Photo by Dreamstime)

By Eric B. Meyer

John and Mary are co-workers. They are also Facebook friends. And both John and Mary have adjusted their respective Facebook privacy settings such that only Facebook friends can view what they post online from their individual accounts.

Consequently, John and Mary can view each other’s Facebook posts, but Sam the Supervisor, who is also on Facebook, cannot. Neither John nor Mary are Facebook friends with Sam.

ABC Company, John and Mary’s employer, wants access to Mary’s Facebook account. On behalf of ABC, Sam demands that John login to his Facebook account on a work computer and then allow Sam to shoulder surf as John views Mary’s Facebook postings. Fearing for his job, John relents.

Does Mary have a claim against ABC Company for invasion of privacy?

Court: employee’s privacy was invaded

The answer, according to a New Jersey federal court, is yes:

The Court finds that Plaintiff has stated a plausible claim for invasion of privacy, especially given the open-ended nature of the case law. Plaintiff may have had a reasonable expectation that her Facebook posting would remain private, considering that she actively took steps to protect her Facebook page from public viewing.”

The court suggested that whether a Facebook user has a reasonable expectation of privacy in her Facebook postings could hinge on her number of Facebook friends; the more friends, the more people who can view her posts, and the lesser the reasonable expectation of privacy.

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Ultimately, however, decisions regarding reasonableness are highly fact-sensitive inquiries. As such, that would be up to a jury to decide.

Therefore, if ABC Company happens to be [insert name of your company here], would you want a jury of Facebook users deciding the fate of your business on an employee’s invasion of privacy claim?

The lesson: Don’t shoulder surf.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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