own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.”
128 Employers who monitor
union organizing activities may face complaints that they sought to intimidate or
deter employees from exercising their federal rights.
129
Employers who seek to monitor employee’s performance through the use of
hidden surveillance cameras must provide notice to labor unions before installing
the cameras in the workplace. In addition, employers must provide the opportunity to
negotiate and bargain over this action. There are key limits to workers’ protections
under the National Labor Relations Act. Notably, the Act does not apply to anyone
employed by Federal, state, or local governments, agricultural laborers, anyone
employed as a supervisor, employees of railroads and airlines, and employees of
retailers whose gross annual volume is less than $500,000.
130
2.5.3 Sharing of Employee Information Posted on Social Media
in the Disciplinary Context
Employer monitoring of employee activity on social networks may run afoul of the
Stored Communications Act (SCA),
131 state regulations, as well as trigger liability
under a common law invasion of privacy claim.
132 Congress enacted the SCA to
protect electronic communications that are configured to be private and are stored
electronically.
133 However, it does not protect electronic communications that are
readily available to the public or have been disclosed by an authorized user of the
account.
134 Employees who share information about their employers on social media
platforms like Facebook with other employees cannot recover damages if their
fellow Facebook “friends” share that information with their supervisors. In Ehling
v. Monmouth-Ocean Hospital Service Corp., the court denied relief to the plaintiff
who was fired based on the content of her Facebook posts.
135 Although the court
held that private Facebook posts fall within the protections of the SCA, the employer
had lawfully gained access to the posts by another “authorized user”—a co-worker
and Facebook “friend” of the plaintiff.
136 Because the plaintiff authorized her
coworker to access her Facebook wall as her Facebook “friend”, when the plaintiff’s
128 29 U.S.C. § 151–169.
129 Section 8(a)(1).
130 “Jurisdictional Standards”, National Labor Relations Board. Available online at: https://www.
nlrb.gov/rights-we-protect/jurisdictional-standards.
131 18 U.S.C. § § 2701–11.
132 Hamilton (2016).
133 18 U.S.C.S. § 2511(2)(g)(i).
134 18 U.S.C.S. § 2511(2)(g)(i).
135 961 F. Supp. 2d 659 (D. New Jersey 2013).
136 961 F. Supp. 2d 669–670.
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S. M. Boyne
collective bargaining or other mutual aid or protection.”
128 Employers who monitor
union organizing activities may face complaints that they sought to intimidate or
deter employees from exercising their federal rights.
129
Employers who seek to monitor employee’s performance through the use of
hidden surveillance cameras must provide notice to labor unions before installing
the cameras in the workplace. In addition, employers must provide the opportunity to
negotiate and bargain over this action. There are key limits to workers’ protections
under the National Labor Relations Act. Notably, the Act does not apply to anyone
employed by Federal, state, or local governments, agricultural laborers, anyone
employed as a supervisor, employees of railroads and airlines, and employees of
retailers whose gross annual volume is less than $500,000.
130
2.5.3 Sharing of Employee Information Posted on Social Media
in the Disciplinary Context
Employer monitoring of employee activity on social networks may run afoul of the
Stored Communications Act (SCA),
131 state regulations, as well as trigger liability
under a common law invasion of privacy claim.
132 Congress enacted the SCA to
protect electronic communications that are configured to be private and are stored
electronically.
133 However, it does not protect electronic communications that are
readily available to the public or have been disclosed by an authorized user of the
account.
134 Employees who share information about their employers on social media
platforms like Facebook with other employees cannot recover damages if their
fellow Facebook “friends” share that information with their supervisors. In Ehling
v. Monmouth-Ocean Hospital Service Corp., the court denied relief to the plaintiff
who was fired based on the content of her Facebook posts.
135 Although the court
held that private Facebook posts fall within the protections of the SCA, the employer
had lawfully gained access to the posts by another “authorized user”—a co-worker
and Facebook “friend” of the plaintiff.
136 Because the plaintiff authorized her
coworker to access her Facebook wall as her Facebook “friend”, when the plaintiff’s
128 29 U.S.C. § 151–169.
129 Section 8(a)(1).
130 “Jurisdictional Standards”, National Labor Relations Board. Available online at: https://www.
nlrb.gov/rights-we-protect/jurisdictional-standards.
131 18 U.S.C. § § 2701–11.
132 Hamilton (2016).
133 18 U.S.C.S. § 2511(2)(g)(i).
134 18 U.S.C.S. § 2511(2)(g)(i).
135 961 F. Supp. 2d 659 (D. New Jersey 2013).
136 961 F. Supp. 2d 669–670.
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S. M. Boyne