The Social Media Evidentiary Goldmine

Federal courts continue to open the door to mandatory disclosure of social media account information and content by litigants. The most recent example comes out of the Eastern District of New York, where the court found that publicly posted and available Facebook photographs and comments provide useful and admissible evidence of a person’s mental and emotional state, especially in a case where the plaintiff is claiming mental anguish resulting from an alleged episode of sexual harassment by employer.

That’s not necessarily news. What I found particularly interesting is that the Court noted that even if the Plaintiff used privacy settings allowing only her friends on Facebook to see postings, she had no justifiable expectation that her friends would keep her information to themselves. In other words, any postings on Facebook that are seen by others are fair game for discovery and review. This would include statements regarding an individual’s social activities, as well as other postings that might provide information regarding potential witnesses. Accordingly, the court ordered the plaintiff to disclose any social media communications or photographs that “reveal, refer, or relate to any emotion, feeling, or mental state; and that reveal, refer, or relate to events that could reasonably be expected to produce significant emotion, feeling, or mental state.”

That is an exceedingly broad disclosure. To make sure its ruling was clear, the court also ordered photographs uploaded to Facebook by the plaintiff and other third parties to be produced because they may reveal a claimant’s emotional or mental status.

This case and its rationale could open the doors to discovery of a lot of information that were previously closed. Normally, defendant employers could not get this kind of a look at the private musings of individuals and their friends, unless there was some separate indication that discoverable information was there. By acknowledging that Facebook contains snapshots of an individual’s current emotional state, the court has given employment defendants a valuable tool in assessing not only damages, but perhaps motivation and intent in employment cases.

More Unhelpful Social Media Guidance From the NLRB

If there's one thing the federal bureaucracy has demonstrated, it's a total inability to match legal concepts with a changing reality. Nowhere is this more true than the labor and employment law field, where large agencies like the EEOC or NLRB are full of people who presumably sit around and do little else but think about the laws they enforce, and yet consistently issue guidance to the private sector about these laws that is, shall we say, less than helpful.

Case in point: the recent NLRB Report that supposedly provides useful guidance on the interaction between the National Labor Relations Act, and social media. Never mind that electronic social media issues have been around for more than a decade, and that Facebook, MySpace, LinkedIn, YouTube, and the rest have had a stranglehold on the popular imagination for the last eight years or so, the NLRB is still treating these electronic gathering places like the office water cooler or coffee pot. As a result, the Board continues to regulate 21st century communications technology under 1940s and 50s standards relating to so-called "protected, concerted activity". The end result doesn't work very well because, at least in my humble opinion, the Board fails to account for the fact that posting something on Facebook is quantitatively and qualitatively different than talking to two or three people around the Keurig. An employer might have relatively little interest in restricting water cooler chat between two or three people; an employer could have a huge interest in preventing slanderous misinformation from being posted where it instantly becomes viewable by millions within an hour or so.

Important safety tip-while most of the NLRA relates to union activity, the provisions under discussion here cover any employer, unionized or not, with employees engaged in commerce, and that meets the statutory minimums in terms of gross business volume ($50,000 for non-retail establishments, $100,000 for shopping centers and office buildings, and $500,000 for retailers).

Employers are encouraged to have a policy on social media use because it puts people on notice with respect to the kind of conduct that the employer expects, and provides guidance on the use of a relatively novel software. Most companies by now are well aware of the dangers of unregulated social media access and use by their employees-harassment lawsuits, intentional and inadvertent disclosure of trade secrets, violation of Federal Trade Commission regulations, etc. Judging by the nature of the problems that arise in employment cases, however, companies' workforces are not so savvy. Thus the need for the policy. But in trying to guide employers on how to draft a policy that does not restrict protected, concerted activity, the NLRB does nothing but describe arbitrary, inconsistent, and hairsplitting standards that are so context-specific as to be almost useless.

Seriously, it appears as if this document was written by different people, at different times, and that no one bothered to read the assembled Report until after it was published, if then. There are lots of nuanced examples that seem at odds with each other, if not outright contradictory.  For example, a policy that prohibits release of confidential "guest, team member, or company information" is illegal, but a policy cautioning employees to be suspicious when asked to disclose confidential information is okay. A policy that directs employees to check with the company external communications or legal department if they are unsure about the information they are about to post , is illegal. So is a policy that precludes offensive, demeaning, abusive or inappropriate remarks. But a policy that prohibits employees from "harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between coworkers online…" is okay.

There's more.  Relatively conventional guidance like this in a social media policy is improper: "think carefully about' friending' coworkers"; "report any unusual or inappropriate internal social media activity"; "you are encouraged to resolve concerns about work by speaking with coworkers, supervisors, or managers"; and "don't comment on any legal matters, including pending litigation or disputes."

If I had to pick an overall theme of the Report, it would be that context is everything.  The Report specifically encourages employers to provide as many examples as possible of prohibited activity so that their employees understand that the social media prohibitions are not to be construed to prevent them from unionizing, talking about a union, bad mouthing their bosses, or complaining about their compensation.  And so the Report blesses a policy forbidding "statements which are slanderous or detrimental to the company" because it appeared on a list of prohibited conduct that included sex or race harassment and sabotage (now there's a word I don't hear very often in employment policies).  The Report noted that such a list communicated an intent by the employer not to restrict the employees from engaging in protected, concerted activity.

When the NLRB began this campaign against social media policies, most lawyers advised their clients to put language in their policies indicating that the policies were expressly not applicable to NLRA protected rights.  But without the contextual references mentioned above, it appears from the Report that a generic savings clause will not be sufficient.

There is a sample social media policy attached to the Report that is fairly bland and generic, and probably will not be of much use to the average employer.  But for right now this represents the only guidance that we have from the Board with respect to what it will tolerate in this area. Until the courts figure out exactly how social media actually interplay with the NLRA, the smart employer will look to this guidance, and its lawyers, in drafting guidance and dealing with social media issues.

The Latest Social Media Issue for Employers: Who Owns a Twitter Account?

There's a particularly interesting case percolating in federal court in the Northern District of California, where an employer is suing a former employee over the content and value of a Twitter account.

The company, going by the unlikely moniker of "Phonedog", is in the business of reviewing wireless and mobile electronic products and services and provides users with resources needed to shop for mobile carriers. The former employee worked as a product reviewer and video blogger and used a Twitter account with the Phonedog moniker, via which he transmitted his reviews and other content. The account was accessed through a password, and disseminated information to promote Phonedog services. This particular former employee was apparently adept at his job and his Twitter account had approximately 17,000 followers at the time he resigned. Following his resignation, the former employee switched the account handle to his own name, and begin using the account to promote another company, TechnoBuffalo.

I can only hope that Phonedog impleads TechnoBuffalo into the case, just for the name.

Phonedog sued the former employee for theft of trade secrets and interference with business relationships. In a recent decision, the court allowed the case to go forward, but what's particularly noteworthy are the issues that the court will be resolving through the course of the litigation. Issues such as: who owns a Twitter account? The short answer is that Twitter does, but is there a property interest when a company licenses an account from Twitter that is then used exclusively by an employee in the pursuit of his duties? And who actually owns the Twitter followers? Or, more appropriately, who has an economic right to continued access to those Twitter followers? The company, of course, argues that the list of followers is akin to a business customer list, but since these people aren't buying anything from the company (Phonedog derives its income from the advertising that it sells based on the number of people that use its site for mobile carrier reviews), does the customer analogy apply? And finally, what's the appropriate measure of damages for loss of such a Twitter account? Is it the loss of advertising, or is it possible to fix a definitive monetary number based on each follower of the account over a set period of time? How far into the future do you have to project that these followers would stay with the account, and can you project increases with enough particularly and reliability?

I'll provide updates on the litigation as I get them.  As the definition of economic activity expands through social media, this case may be a bellwether.  At the very least, it raises some compelling legal questions.

And here's another SM decision involving LinkedIn--similar issues.

Hiring via Social Media

I am frequently queried by clients about the use of social media as a tool for hiring. Surfing Facebook, Linked In, or even Twitter, can frequently give a company insights into an applicant's personality, work ethic, and propensity for teamwork that will not come through in a relatively brief interview or a resume. However, companies must be aware of the pitfalls that exist when using social media information to make significant employment decisions such as hiring.

For example, it's possible that a social media site can provide too much information, in the form of an applicant's race, age, religious affiliation, or other protected category. This type of information is typically not included on an employment application for good reason--it provides a basis for a discrimination claim in the event the applicant isn't hired. In the employment discrimination world, there's no legal difference between learning that someone is a practicing Druid from reviewing an application and learning it from a Facebook site.

In addition,, social media data are often subject to reliability issues. If you have not figured out by now that everything you read on the World Wide Web isn't true, then you should not be in a position of responsibility not only at your company, but within your family. The operative phrase for Internet information: Don't Trust, and Always Verify.

Privacy is another issue, although frankly, if your hiring managers are hacking into people's private Internet sites as part of their routine practices, your general counsel should be getting ready for criminal indictments instead of EEO discrimination claims.

Smart, astute companies (such as the ones that rely on yours truly for advice) have developed written operating policies to guide their hiring managers on the use of social media sites. These policies focus searches on relevant, job-related criteria, and frequently use some type of screening mechanism to prevent protected status data from making it to a decision-maker.

Here's a link to a reasonably comprehensive guide on social media use in the hiring process (it's the PDF link with "Internet Use" in the title).

And remember, as with so many things in the employment law world, less is frequently more with respect to these types of inquiries.

Tweety Bombs

It should be abundantly clear that employers with routine access to the Internet (and that includes those of you reading this, otherwise you wouldn't be able to read this) should have some type of social media policy in place. A proper social media policy clarifies the allowable use of things like Facebook and Twitter, serves to manage expectations and set standards for the workforce about its behavior online, warns employees about posts that will get them or the company (or both) into trouble, especially with those friendly people at the Federal Trade Commission, and generally reminds people that the Internet is typically not the place to be sharing proprietary company information.

For most companies, these policies are directed at a relatively small portion of the workforce. Typically, employees don't have time to embarrass themselves on Facebook during the workday, and no inclination to do so, anyway. However, there is at least one workforce that seems to not only embrace foolishness online, but in fact revel in it. 

I'm talking about the professional athlete community. And if you think I'm kidding, see the posts from NFL receiver Bernard Berrian, for example.  Especially the one where he tells a double amputee, Iraq war vet to "sit down" and shut up with the criticism.  Oops (in fairness, Berrian didn't know the guy was disabled, but still).

With the announcement that the NHL has now put in place a social media policy, most of the major sports leagues (that is, if you consider the NHL a major sports league) have social media policies for the players that are noteworthy for their pickiness, and their enforcement.

For example, the NFL prohibits its players from using social media within 90 minutes of the start of a game, through the end of the postgame media interviews. Updates to a player's Twitter account by surrogates are also prohibited. Even as media tolerant as the NFL is, having players taunting each other via smart aleck tweets during a game, especially when the coaches are trying to get their attention, is simply too much. Players have been fined up to $25,000 for violating the time limit policy, and one running back was fined by his club for criticizing the team's catering choices.

Major league baseball prohibits the use of electronic communication devices on the bench, bullpen or field once batting practice starts before a game, and cell phone use in a clubhouse is prohibited 30 minutes before the game. Although content can get you in trouble, Chicago White Sox manger Ozzie Guillen was fined $20,000 with a two-game suspension for launching a post-ejection tweet tirade back in April not for his verbiage, but his timing.

Surprisingly, that repository of petty, silly rules, the NCAA, does not have a social media policy for players. It needs one, although the Association does prohibit all kinds of social media activity in the recruiting context. A number of schools have prohibited social media use by their athletes, and players have been suspended for criticizing their coaches, or making what are referred to as "insensitive" remarks on Twitter.

I would not hold these policies up as examples for the non-jock workforce sector, however. Most of these restrictions are done in the context of a collective-bargaining environment, and the NLRB continues to show particular interest in employers that limit their employees' expressiveness on social media. Just enjoy the fact that you don't have to worry about your average white-collar worker blasting out something about your workplace catering to more than 1 million followers on a day-to-day basis.

UPDATE:  True to form, the NCAA institutes a major change in its recruiting policy re athlete contact by coaches, allowing unlimited calls and texts to rising high school juniors, but still no social media policy for kids in college.  Too bad.

Social Media Update

In what should be no surprise, an NLRB administrative law judge found for a group of employees against their employer in the first fully litigated social media case under the National Labor Relations Act. The decision is, I hope on the outer edge of what the NLRB believes is sanctionable conduct, given that there was no attempt by the employees to raise any workplace issues with their employer. The conduct involved a group of employees complaining about coworkers and working conditions on Facebook. Several of the employees were terminated after the Facebook postings came to the attention of the employer.
The decision reinforces, again, the necessity for employers to avoid taking precipitous action based on social media conduct involving their workforce. See my post below for more details.