Judge denies Home Depot's demand for worker's emotion-laden Facebook posts

Filed Under: Facebook, Law & order, Privacy, Social networks, Twitter

Home DepotA federal California judge has ruled that Home Depot can't rummage through a former worker's Facebook, Twitter, LinkedIn, or other social media posts and pictures to prove that she lied about emotional distress caused by her employer's alleged wrongdoing.

U.S. Magistrate Judge Suzanne H. Segal earlier this month ruled that the hardware retailer's demands for social networking communications relating to "any emotion" of the employee, Danielle Mailhoit, were too all-encompassing.

In accordance with previous law relating to what social media posts are relevant in court cases, the hardware store does have the right to "social-networking communications between plaintiff and any current or former Home Depot employees" that relate to her employment or the lawsuit.

But, Segal ruled, that access did not include posts relating to any and all of Mailhoit's emotions, as the big-box retailer was after.

Mailhoit, previously a manager of Home Depot's store in Burbank, California, was fired after Home Depot investigated her job performance in 2010.

She filed a suit against her employer, charging unlawful discrimination based on gender, as well as failure to accommodate her known physical disability.

Mailhoit says she has vertigo, which affects her ability to drive and engage in other "major life activities."

Regarding getting emotional, the Home Depot's demands were indeed vast.

According to court filings, Home Depot was after just about any shred of social media context that might reveal Mailhoit's emotional state, including:

"Any profiles, postings or messages (including status updates, wall comments, causes joined, groups joined, activity streams, blog entries) from social networking sites … that reveal, refer, or relate to any emotion, feeling, or mental state of Plaintiff, as well as communications by or from Plaintiff that reveal, refer, or relate to events that could reasonably be expected to produce a significant emotion, feeling, or mental state"...

Mailhoit had earlier testified that she'd cut herself off from communication with family and friends as a result of the Home Depot's alleged wrongdoing.

Facebook, Twitter, LinkedInHome Depot requested a broad array of social media context in order to vet this isolation, as well as what Mailhoit claimed was post-traumatic stress disorder and depression.

The retailer was after any postings that could cut the legs out from under her claims of emotional distress, and that's exactly what its legal team claims to have found in publicly available postings on Mailhoit's Facebook and LinkedIn accounts.

But while posts well might back up or undermine a person's stated emotional distress, the judge said, Home Depot's demands for any and all emotional content could stray into the irrelevant.

Judge Segal wrote:

Even if the first part of this category, which seeks communications relating to "any emotion," could be understood to encompass only communications containing specific emotive words (which the request does not identify), the category would still arguably require the production of many materials of doubtful relevance, such as a posting with the statement "I hate it when my cable goes out."

The same goes for Home Depot's request for communications relating to "events" that could "reasonably be expected to produce a significant emotion," the judge noted, which could include irrelevancies such as the emotional gush that accompanies the viewing of a football game.

Home Depot also wanted access to any social networking communications Mailhoit had with other Home Depot employees, along with any photos of her that had been posted to her profile, in which she'd been tagged, or that had been in any other way linked to her profile.

The photos request, for "every picture of plaintiff taken over a seven-year period and posted on her profile by her or tagged to her profile by other people," was also deemed too broad.

In contrast, Home Depot's request for Mailhoit's posts about her job or the lawsuit were sufficiently relevant, Segal said, and granted the request.

Note that this court ruling certainly doesn't smack down requests for social media postings.

That material is fair game as far as the courts are concerned.

Home Depot was denied simply because its requests were overly broad, not because the judge considered the request an affront to privacy.

Mailhoit's LinkedIn profile

If Gartner's predictions are on track, by 2015, 60 percent of employers are likely to be eavesdropping on workers' social media posts in order to protect their security.

I'd guess the number is already much higher, if you take away the "in order to protect their security" part and substitute "because they can."

This growth in employer surveillance has been met with some state laws to protect employees from being forced to hand over their social media passwords, such as one recent law passed in Illinois.

But nothing out there will protect us from what we publicly post.

Don't be like Robert J Sumien, the emergency medical technician fired over his Facebook postings about patients deserving a boot to the head.

Tread softly, carry a big stick, and use it to beat your postings into submission.


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11 Responses to Judge denies Home Depot's demand for worker's emotion-laden Facebook posts

  1. Ramona Johnson · 772 days ago

    It's shit like this that makes me want to drop all social media networks. In no way will I ever make my profile public, or any of my posts public. I might complain about stuff on FB, but there is no reasonable excuse for employers to snoop into my own personal business.

  2. Kevin Smith · 772 days ago

    If you believe that the things you post on the internet on a social networking site are "private" you are a fool. When did people get this delusional belief that posting on the internet is somehow not posting in public?

    I don't remember this phenomenon until recently. It was previously understood that the interent is public domain.

    • Eric Pierce · 770 days ago

      If you are required to register and agree to Terms of Service (ToS) at a social networking site, and then login before posting comments, they are not completely "public" in the sense that any basic internet access will provide access to the content in question. It also isn't completely "private", but people that do have "inside" access, via a ToS-approved login, could potentially be persuaded to divulge content to a employer, which might or might not be "legal".

      Within a Social Media site that requires registration and login, there may be "public" settings. For instance in Facebook, if your content is "public", then anyone that can login to Facebook can see it, but not the general "public" of anyone on the internet.

      Any employer that has access to a login at such a site would then be able to access "public" content within the site.

      • Eric Pierce · 770 days ago

        Please note that it may still be that case (at least in the USA) that Union organizing is still a special, federally protected, form of "free speech" that can help to protect workers from predatory or abusive treatment from employers.

        What this might mean is that workers that feel that their legal free speech rights are being infringed upon by predatory or abusive employers might be able to receive some additional, if not all encompassing, protections on free speech related to labor organizing that they would not otherwise have access to as non-union workers.

  3. 13thGeneral · 772 days ago

    Screw it, let's just do away with any social activities and communications over all. We should just shut our brains off from anything unrelated to "work" and become mindless zombie slaves.

  4. Mark · 772 days ago

    This is crazy, can the US courts also allow your employer to search your house or demand that you hand over your personal (paper) diary? What they are allowing is tantamount to the same thing.

    With luck Europe and the UK will be sensible about this. From recent research it is my belief that Facebook would be in breach of the UK Data Protection Act should it hand over any information on UK residents. I hope I am right!

    • Anonymous_man · 772 days ago

      You are equating the privacy expectations of Facebook to a diary locked away in your home?

      If you're going to sue someone for emotional distress or whatever, whether they be an evil corporation or an individual, do they not deserve to defend themselves? The judge is doing exactly what he should...only what is relevant to the case is allowed.

  5. Doodle · 771 days ago

    I'm always a little careful about what I post on a social networking site, but in the past mostly just to try not to offend or be rude, etc to any of my "friends" (quoted because I don't actually know the majority of my "friends" on FB).
    However, several months ago something happened that kind of drove home the point that you never know who is reading what you post. A co-worker posted a complaint about one of our software vendors not providing good customer service (there was a little more to the post than just this, but that was the main point of it). The next day at work he got a call from that software vendor, because they read his post and didn't like the content of it. They didn't ask him to remove it (which he did anyway), they said they just wanted a chance to correct the issue.
    In this particular case the outcome was a good one, as the software issue got resolved quick, fast and in a hurry after that. But it drove home the point about watching what you post. I assume the vendor was actively searching for any posts that had their company name or one of their product names in them, regardless of who posted it.
    Yes, Yes, I know, public profiles/posts versus private ones. But the point is, if you might be concerned about how something you post may be used today, tomorrow or 5 years from now, then you probably shouldn't post it at all. Just because you have an expectation of privacy today doesn't mean some stupid law won't be passed tomorrow that is the opposite of your expectations.

  6. Mike · 771 days ago

    Thank you for exposing Danielle's short comings as a potential employee. I know I won't be looking to employ her in any position.

  7. Eric Pierce · 770 days ago

    The reality is that some software companies will use whatever means they feel necessary to protect their interests and profits, including bullying, or worse (e.g., lobbyists attempting to bribe politicians). If they have to engage in bullying or abusive behavior towards the IT workers at a customer site to protect their perceived self-interests, then they will do so.

    If such workers are unionized, they union may be able to provide some additional "free speech" protections, at least as related to federal protection of "labor organizing" in the USA.

    As explained by Anthony Lukas in "Big Trouble", such labor protection laws were put in place after an extensive history, from roughly 1890 to 1915, of corporations hiring "police" organizations such as the Pinkertons, to brutally attack labor organizers, sometimes using illegal/terrorist tactics.

  8. Kneel · 767 days ago

    'Social' isn't business. Business need to get their noses out of people's priavte 'social' lives. Businesses who choose to delve into Social media have been badly burned - and righfully so. A few Australian businesses have learned the hard way that business isn't social, and social isn't business and people have punished businesses very badly for putting up profiles on Facebook, and then asking to be liked.
    Linked-in is also a professional network - not social.
    Perhaps this is the facebook for business?

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.