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.
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