When Social Media Posts Are Discoverable in New Jersey

On March 16, 2023, the Appellate Division in New Jersey issued a decision in Davis v. Disability Rights New Jersey, which set forth guidelines for when a litigant’s private social media posts may be subject to discovery by the other party to the action. In Davis, the plaintiff in an employment termination case appealed after the trial court entered an order which compelled “plaintiff to provide copies of her private social media posts, profiles and comments” over a 32 month period which the court described as germane to her lawsuit. The Appellate Division found that the trial judge “appropriately considered plaintiff’s privacy interests in her social media posts . . . and did not err in allowing defendants’ discovery of limited social media posts . . . to defend against her claims that her termination violated the [Law Against Discrimination], causing her emotional distress.”

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Court Upholds Employee’s Termination for Violating Employer’s Social Media Policy

On March 4, 2021, the United States Court of Appeals for the Third Circuit affirmed a decision of the United States District Court for the Western District of Pennsylvania which ruled in Ellis v. Bank of New York Mellon Corp. that an employee could be discharged by her employer based on her social media posts.

In Ellis, the plaintiff, who was a white employee of a bank, sued her employer after it terminated her for violating the ban’s Code of Conduct and Social Media Policy based on a post she made over the weekend on her personal Facebook account. Her post advocated violence toward demonstrators protesting the death of a black man who was killed by police officers in Pittsburgh. Because plaintiff’s Facebook account was set to “public,” the post was visible to anyone on Facebook, even those who were not plaintiff’s friends. As a result of the post, the bank received numerous complaints including several that questioned whether the bank shared its employee’s values and encouraged violence.

Following an internal investigation, which included an interview with plaintiff, who was an at-will employee, the bank notified her that she was terminated immediately. The bank explained that “she violated the Code and Social Media Policy because her post was offensive, demonstrated poor judgment, showed a lack of respect for others, harmed [the bank’s] reputation and encouraged violent behavior.”  Plaintiff filed suit against the bank for race discrimination under Title VII, contending that she was fired because of her race.

The district court rejected plaintiff’s argument and granted summary judgment in favor of the bank, concluding that plaintiff failed to make out a prima facie case of discrimination and that she could not rebut the bank’s legitimate, non-discriminatory reasons for terminating her. The Third Circuit affirmed.

Although Ellis, which was deemed “not precedential” by the Third Circuit, was a race discrimination case that was decided by applying “the familiar three-step framework articulated in McDonnell Douglas Corp. v. Green” typically used in private actions challenging employment discrimination, the case does have significant social media implications for employees. Ellis clearly demonstrates that employers can take disciplinary action against employees if their social media posts violate company policy, even when made from their personal social media accounts during non-working hours.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.