Many of us send and receive recommendations on social media sites, such as LinkedIn, from co-workers, vendors, and clients about our work performance or services. Recently, employers have realized that these may be inconsistent with the employer’s policies on neutral references. Worse yet, these recommentdation may even be providing false or fraudulent information. Employers need to take a hard look at their employees’ recommendations on social media.
Employers have long realized that providing negative references for former employees can create liability for defamation. As for positive references, a number of courts have found employers liable who provided false positive references for former employees that employers knew had committed crimes or engaged in other misconduct. As a result, many employers today simply provide neutral references for all former employees (name, former job title, salary, and dates of employment) and they have implemented policies requiring their employees not to make recommendations at all.
Unsanctioned recommendations appearing on social media sites, therefore, can cause complications for employers. Take, for instance, an ill-timed positive reference published by a manager on a social media site extolling his former employee’s honesty while, unbeknownst to the manager, the employer was contemplating litigation against the former employee for taking trade secrets or other confidential business information as he was leaving.
To avoid these and other similar issues, employers should consider taking several steps. Most importantly, employers should amend their written social media or reference policies to address unauthorized employee recommendations and references on social media sites. Depending upon the circumstances, barring employees from making such references may be appropriate. However, this is not always practical or prudent for employers who are encouraging employees to promote their businesses through social media. Under these circumstances then an employer may require instead that employees request authorization from their human resources department or a designated individual such as the Controller or CFO before making references or recommendations.
Simply amending social media and references policies and procedures, however, may be insufficient. Employers need to be vigilant and proactive. Appointing suitable personnel and, if possible, a social media manager to monitor public social media sites to ensure that employees are not violating critical policies is another measure employers should consider. Of course, this must be done in a manner that respects the off-duty rights and protected concerted activities of the employee. See March and November 2011 posts regarding Facebook & the NLRB.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
Thursday, November 10, 2011
Friday, November 4, 2011
The Latest Installment In The Facebook Series
Earlier this year, I posted about an NLRB settlement involving an employee who had called her boss a “scumbag” on Facebook. Her employer had fired her relying upon its policy prohibiting employees from disparaging the company online without permission. The NLRB sought to protect the employee’s right to discuss working conditions with other employees. Such a restraint on employee activity is prohibited under federal labor law. The NLRB also claimed that the employee’s termination was illegal because she was complaining about the general terms and conditions of her employment and her co-workers had been prompted by her posting to respond.
A New York Appeals Court recently ruled that there are limits on how much proof of employee dishonesty can be discovered through Facebook. In a personal injury suit, the employer, Turner Construction Co. was attempting to use information from the employee’s Facebook account to show that he was not being truthful about the extent of his injuries. In this decision, the court held that the employer could not have access to everything in the employee’s Facebook account was not sufficiently specific. The decision stated that the employer could only peruse Facebook activities that are relevant in that the information contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses and other claims. That judgment includes activities that are set to private or offer only restricted access to outsiders, aka non-Facebook friends of the plaintiff.
Though this is an incongruent ruling as compared to previous decisions, it is clear that postings on social media have wide implications. Specifically, these cases highlight the growing trend of social media use in civil suits, with some courts granting increasing access to what was once considered off limits because of the employee’s site privacy settings.
The courts are essentially saying that the employer can have access to information in those accounts but only use it in trial insofar as the content contradicts a plaintiff’s allegations.
The constant in all of these cases is that Facebook and other social media sites will continue to be targeted by lawyers reaching to find information helpful to their clients. And now, even password protected information may be open game.
So why is all of this important even here in on the West Coast? Simply put, civil law is established by court precedence, that is court decisions like those above. This means that the likelehood of a local court relying on a decision in a distant state is high. So even those rulings have the ability to eventually effect how you do business.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
A New York Appeals Court recently ruled that there are limits on how much proof of employee dishonesty can be discovered through Facebook. In a personal injury suit, the employer, Turner Construction Co. was attempting to use information from the employee’s Facebook account to show that he was not being truthful about the extent of his injuries. In this decision, the court held that the employer could not have access to everything in the employee’s Facebook account was not sufficiently specific. The decision stated that the employer could only peruse Facebook activities that are relevant in that the information contradicts or conflicts with the plaintiff’s alleged restrictions, disabilities, losses and other claims. That judgment includes activities that are set to private or offer only restricted access to outsiders, aka non-Facebook friends of the plaintiff.
Though this is an incongruent ruling as compared to previous decisions, it is clear that postings on social media have wide implications. Specifically, these cases highlight the growing trend of social media use in civil suits, with some courts granting increasing access to what was once considered off limits because of the employee’s site privacy settings.
The courts are essentially saying that the employer can have access to information in those accounts but only use it in trial insofar as the content contradicts a plaintiff’s allegations.
The constant in all of these cases is that Facebook and other social media sites will continue to be targeted by lawyers reaching to find information helpful to their clients. And now, even password protected information may be open game.
So why is all of this important even here in on the West Coast? Simply put, civil law is established by court precedence, that is court decisions like those above. This means that the likelehood of a local court relying on a decision in a distant state is high. So even those rulings have the ability to eventually effect how you do business.
Please Note: This Blog is made available by the lawyer publisher for educational purposes only as well as to give information and a general understanding of the law, not to provide specific legal advice. By using this Blog site you understand that there is no attorney client relationship between you and the Law Office of Elizabeth Van Moppes. The Law Office of Elizabeth Van Moppes is not in control of the linked sites and is not responsible for the contents of any linked site. This Blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. Elizabeth Van Moppes is licensed to practice law in the State of Washington only.
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