Almost every day, courts are confronted with social media evidence. A few years ago, I remarked on some then-recent cases and noted social media can be a “gold mine” for employers looking to gather evidence against former employees who sue them. It can also be a landmine.
Very recently, a local employer made headlines after getting hit with a $400,000 verdict in a lawsuit filed by a former employee. Like most disputes that go to trial, it was an intricate case with a lot of details. But the one detail the media kept highlighting was a Facebook posting made by an officer of the company. She wrote, “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider [Employee’s] shoulder injury kept him away from work for 11 months and now he is trying to sue us.”
And it gets worse for this particular employer. The same company is defending another lawsuit in federal court involving other claims arising out of the same set of circumstances. That case is set to go to trial later this year, and it made headlines last summer when the court refused to dismiss the employee’s claim that the Facebook posting was a wrongful disclosure of medical information.
Of course, the newsworthy cases are the exceptional ones. Most managers use more discretion on social media, and many companies try to control situations like this with strong policies governing the use of social media. But that can backfire, too. In the past several years, the National Labor Relations Board has been very aggressive in finding against employers with restrictive social media policies. And remember, all employees have a legal right to engage in “concerted activities for the purposes of collective bargaining or other mutual aid or protection.” This applies to union and non-union workforces, and the NLRB is very serious about policing workplace rules that it thinks unfairly limit these rights.
Because social media is still relatively new (at least to the courts, where some practices have not changed for centuries), this is an area that deserves ongoing monitoring. If your business does not have a policy on social media, consider drafting one. If you do, consider reviewing it for compliance and liability concerns. Out of courtesy, I’ve chosen not to name the company that suffered the recent verdict (even though THK has no connection to it). If your company appears in the headlines, you can’t expect all the commentators will be so discreet. Prevention is always the best defense against both bad publicity and legal claims.
Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon investigation of specific facts. You should consult an attorney for advice regarding your individual situation.