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Court tells harassment plaintiffs to turn in cellphones, passwords

We have previously discussed the employment law issues surrounding employers here in Maryland who use Facebook to evaluate job candidates or check up on existing employees. While many states have addressed this privacy issue, some of them outlawing the practice, Facebook and other electronic communications of employees are turning up in another area of employment law--litigation.

In a federal sexual harassment case that is currently underway, a judge has asked the class action plaintiffs to turn over their cellphones and social media account passwords to the court at the request of the employer. The employer, The Original Honeybaked Ham Co., asked for the broad access to information after finding some communications related to the case posted on the lead plaintiff's Facebook profile.

The case involves 20 women who complained of experiencing sexual harassment and retaliation at the employer's stores. The Original Honeybaked Ham Co. has denied the allegations in the complaint, which was filed by the Equal Employment Opportunity Commission last year.

A federal judge granted the employer's motion to compel the class to provide their cellphones and account passwords with some stipulations. The passwords and cellphones will be given to a special master who will compile all of the communications and then the plaintiffs will be able to look over the compilation and make objections.

While some have said that the judge's order is too broad, and perhaps treading near privacy rights, the judge has said that the fact that these texts, Facebook posts and the like exist in cyberspace does not make the information inaccessible to a party in litigation.

This case should be a reminder to everyone here in Maryland that the right to privacy on cellphones, email accounts, Facebook and social media is limited. As such, it is important to refrain from talking about one's legal problems via text messages or Facebook posts. Whether it is right or wrong, this information is being used increasingly in court cases.

Source: ABA Journal, "Plaintiffs in EEOC Suit Must Turn Over Cellphones and Facebook Account Passwords, Judge Rules," Martha Neil, Nov. 20, 2012

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