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PITFALLS OF SOCIAL MEDIA

Added on 08/29/2016 by kalsonlaw

Social Media can expose both employees and employers to significant risks of liability and litigation. Social media has transformed the way that people communicate and express discontent. Companies also use social media as an advertising tool and to search for potential employees. The law is emerging slowly. As a result, there are not always clear cut guidelines about what conduct is permissible or prohibited.

As a general rule, it is not recommended that you criticize or disparage your employer on social media. You can be terminated for posting negative comments about your employer or co-workers unless it is “protected concerted activity” as described in my prior blog. A social media post may negatively affect the company’s business or reputation and they will likely take action including termination and litigation.

On the other side, employers are cautioned from using social media for hiring decisions as social media posts may reveal a prospective employees protected class or status. In March of 2014 the EEOC advised that the use of sites such as LinkedIn and Facebook can provide a valuable tool for identifying good candidates by searching for specific qualifications…but the improper use of information obtained from such sites may be discriminatory since most individuals’ race, gender, general age and possibly ethnicity can be discerned from information on these sites. One employee claimed age discrimination when an employer utilized social media to recruit prospective employees. The job applicant argues that it was discriminatory because the practice “put older workers at a disadvantage,” as “older people use computers less often and less fluently than younger people.” The number of cases alleging discrimination have risen when a company uses social media to recruit workers.

If an employee posts harassing or derogatory information about co-workers, an employee may be held liable for hostile work environment. In the Montone case, the Appellate Division determined that postings on the NJ.com website were evidence of discrimination and harassment by the Jersey City Police Department and its officials.

In the case of Hillstone Restaurant Group, a jury found that a manager who surreptitiously monitored employees postings in MySpace violated Federal and State law. Unauthorized access can subject an employer to liability.

Another issue is whether prospective or current employers can ask you for your LinkedIn, Twitter or Facebook account and log-in information. The general consensus is “no” (however, you may not get the job). On August 28, 2013 the New Jersey Legislature signed a Bill into law protecting employees social media privacy. The Bill prohibits employers from requiring their employees or job applicants to disclose usernames, passwords or other log-in information for sites such as Facebook or Twitter. The law also prohibits retaliation against employees who fail to provide the information. However, there is no private right of action to sue in Court for damages should a prospective employee refuse to provide the information and not get the job. Enforcement is strictly through the Department of Labor. An employer who violates the Act can be subject to civil penalties not to exceed $1,000.00 for the first violation.

The Act specifically permits an employer to still have policies governing use of company electronic devices or company social media sites. The Act does not prevent employers or prospective employers from reviewing or accessing information in the public domain. See N.J.S.A. 34:6B-5.

The request for this type of information requires balancing the employees right to privacy with the employers right to have all the information necessary to hire a qualified candidate. Many feel that requesting this information certainly crosses the privacy line. It is not just the employees privacy that is invaded but also the privacy of the employees “connections”. In a difficult job market, people may not be in a position to refuse an employer’s inquiry for this information. In my opinion, employer requests for social media information are not necessary because employer’s can use the traditional background checks, professional references and still access public internet information for applicants and employees.

Facebook posts can also be discoverable in the context of civil litigation for personal injury or wrongful termination. Discovery is the process where the parties seek to exchange information about the case after litigation is filed. The scope of discovery is governed by court rules. If a discovery request is unduly intrusive, it will likely be denied. However, information is discoverable that is likely to lead to admissible evidence. In the Harmon vs Great Atlantic and Pacific Tea Company case, the Court set forth the balancing interests involved in discovery in a New Jersey discrimination case. In that case, defendants sought information to which plaintiff objected. The requested discovery was checkbook registers and bank statements. Plaintiff argued that the request was overbroad, burdensome, violated their right of privacy and not reasonably related to the discovery of relevant evidence but rather to harass plaintiff.

This standard is also applied in personal injury cases. In Largent vs. Reed, the Court ordered a Plaintiff who was injured in an accident to turn over her Facebook log-in information to defense counsel. In Largent, the Judge posed the question as follows: “What if the people in your life want to use your Facebook posts against you in a civil lawsuit?” With the explosive growth of social media, Judges have had to confront this question more and more frequently. The answer to this question is something you’ll hear quite often from lawyers: “It depends.” The answer involves the balancing of the expectation of privacy in the Facebook posts and whether the requested information will lead to the discovery of admissible evidence. In a personal injury case where the plaintiff claimed injury from operating a fork lift, postings regarding his bike stunts on the public portion of his Facebook page were held discoverable and relevant.

In the Tompkins case, a plaintiff claimed injuries in an accident. The Court ruled that the entire Facebook account did not have to be produced. The Court stated that defendants did not “have a generalized right to rummage at will through information” posted. In a New York case last year, the Appellate Division denied defendant’s right to review most of a personal injury plaintiff’s Facebook postings. The opinion stated, “unbridled disclosure of such information, based merely on speculation that some relevant information might be found is the very type of fishing expedition that cannot be countenanced.”

You are cautioned: do not remove your Facebook postings if you are in litigation as it can be determined to be spoilation of evidence. An adverse inference will be applied against you if you destroy relevant evidence. In the current atmosphere of emerging social media issues, I have to question clients about their social media postings. I request they sign an agreement informing them of their duty to preserve the information. I also want to know what is on their Facebook postings concerning their employment, particularly if they allege harassment or wrongful discharge.

The New Jersey law does not have many cases interpreting it and how it will be applied. As use of social media is prevalent by both employees and employers, both are urged to use it wisely. Any post should be thought out and appropriate. You don’t want to lose a job based on an emotional posting made in a time of distress. It’s just like email. Think before you send. Think before you post.