More Facebook Issues: This Time, It’s The Stored Communications Act

Employer use of social media information in employment decisions has received much attention in the past couple of years. As we have previously reported, several states have passed laws precluding employers from asking for employee or applicant Facebook passwords, and the National Labor Relations Board has on several occasions considered Facebook material as a potential exercise of rights under the National Labor Relations Act (http://www.nlrb.gov/national-labor-relations-act). On the other hand, an employer properly terminated an employee for misuse of FMLA when the employee's Facebook posts showed the employee had not been honest about her alleged serious health condition. A recent case introduces a new wrinkle into use of Facebook material in making employment decisions: the federal Stored Communications Act (SCA).