Employers’ access to employees’ and applicants’ Facebook accounts is legally limited in 12 states. The restrictions, though, vary widely. Most of these laws were, at least according to their proponents, intended to prohibit employers from requesting or requiring an employee’s or applicant’s password or account information for the purpose of gaining access to the account as a sort of back-door background check. Unfortunately, many of the laws go (or potentially go) far beyond that simple limitation.
I’ve been opposed to these bills since they first hit the legislative radar and continue to think they are unnecessary. For one, they attempt to fix a problem that does not exist—employers are not asking for applicants’ Facebook passwords. The handful of reported incidents across the country should not prompt a flurry of legislative initiatives.
And, second, the law already prohibits such conduct. As I’ve previously written, I believe that, at least arguably, the Stored Communications Act (SCA), which is a part of the federal wiretap statute, would prohibit employers from gaining access to an account in this way.
Now there is a case that takes that idea one step further. In Rodriguez v. Widener University, the Eastern District of Pennsylvania declined to dismiss a claim brought under the SCA based on allegedly unlawful access to the plaintiff’s Facebook account.
Specifically, the student-employee alleged that his employer obtained access to his Facebook account and suspended him because he was perceived to be a threat to the community due to posts displaying images of weapons. The employer moved to dismiss the Complaint and was successful on all but one count—the count brought under the SCA alleging unlawful access to his Facebook posts. The employer argued that the posts “were accessible to the general public and/or forwarded to [the defendants] by concerned students who had equal and permitted access to Plaintiff’s Facebook postings.”
Unfortunately for the employer, on a motion to dismiss, facts not alleged in the Complaint (i.e., the Facebook posts were public and, therefore, not accessed unlawfully), cannot be considered by the court. Instead, only the allegations in the Complaint itself can be considered. And, here, the plaintiff’s complaint did not allege that they were publicly available. Hence, because there was no factual basis in the complaint to support the public or non-public nature of the plaintiff’s Facebook page, the court declined to dismiss that count.
So, what does this mean? Most important, and most unfortunately for employers, it means that there are likely more suits like this to come. When an employer receives a complaint from another employee about a potential threat or similar concern about potential workplace violence by another employee, the employer must investigate it. The same rule applies for complaints about inappropriate conduct that could be or give rise to unlawful harassment or discrimination. The employer has a legal duty to investigate.
And if the complaint is brought to the attention of an employer via a forwarded or printed copy of a Facebook post, the employer cannot (nor should it) ignore it. So long as the employer does not access the post or page without authorization, the employer has not violated the law. If a third party, such as a coworker, brings the Facebook post to the attention of the employer, there’s been no unlawful conduct by the employer. Unfortunately, that does not mean the employer won’t get sued, which appears to be what happened in this case.
So what’s an employer to do? It’s a very difficult line to walk. The safest thing, at this stage in the still-developing legal landscape, seems to be one of two things. First, to not show the employee the copy of the posts at all. Instead, simply state that you’ve received credible information regarding XYZ conduct and that you are investigating that complaint. Second, you could show the employee the posts during the course of your investigation and make clear that the posts were provided to you by a credible source but that you did not access the Facebook page.
Either way, the employer is between a rock and a hard place. On one hand, the employer has a duty to investigate. On the other, the employee is not obligated to allege in his complaint whether or not the posts were publicly available, thereby avoiding dismissal at the early stage of the case.