Because Social Media is Discoverable, Businesses Should Take Precautions to Limit Liability

Social media sites and blogs have become increasingly popular among employees for firm marketing and business purposes. These marketing activities offer employers great potential exposure; an August 2011 Nielsen Company study found that Americans spend approximately one-fourth of their time online on social networking sites and blogs. Although these marketing activities can provide employers with positive exposure, social media sites can create a significant litigation risk for companies when employees engage in inappropriate activity online.

Recently, courts have allowed content of social media sites to be disclosed in litigation.

In Romano v. Steelcase, Inc., 90 NYS 2d 650 (N.Y. 2010), a New York state court held that the plaintiff’s social media profile, postings and pictures were discoverable to the defense, rejecting the plaintiff’s privacy concerns. The defense sought to introduce pictures from the plaintiff’s Facebook and MySpace photos which showed her outside of her home smiling, directly contradicting her claims that she was physically incapacitated and depressed after suffering injuries in an accident caused by the defendant.

In Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 WL 4730899 (N.D. Cal. Dec. 7, 2009), the defendant employer proffered a posting from the plaintiff’s MySpace page in its defense of the plaintiffs’ discriminatory discharge claim; the court held that the violent rhetoric contained in the post provided the defendant with a legitimate nondiscriminatory reason for terminating the plaintiff.

In Purvis v. Commissioner of Social Security, 2011 WL 741234 (D.N.J. Feb. 23, 2011), the court held that the defense could use a post from the plaintiff’s social media site to refute the plaintiff’s allegation that she was entitled to social security payments on account of her disability. Although the plaintiff claimed her bronchial asthma impeded her ability to work, the defense found a photo uploaded to the plaintiff’s Facebook page which appeared to show her smoking.

To help protect your business from embarrassing posts and potential litigation, implementing a social media policy for employees is prudent. The policy can be created in four steps:

  • Determine the objective for your company’s use of social media.
  • Create a uniform policy for all employees communicating through social media platforms.
  • Monitor the content and provide safety tips for employees to prevent potentially compromising posts.
  • Enforce the policy consistently when it is violated to protect the business from potential claims by disgruntled employees.

Categories: Labor and EmploymentLitigation
Tags: Jamie A. ColeEdward G. GuedesMichael S. PopokBrett J. SchneiderJoseph H. SerotaDiscoveryEvidenceEmployee MisconductFort Lauderdale Business Litigation AttorneysFort Lauderdale Business Litigation LawyersMiami Commercial Litigation AttorneyMiami Commercial Litigation LawyerSouth Florida Commercial Litigation AttorneySouth Florida Commercial Litigation LawyerSouth Florida Business Dispute Litigation AttorneysSouth Florida Business Dispute Litigation LawyersMatthew H. MandelFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFort Lauderdale Employment Law AttorneysMiami Employment Law AttorneysSouth Florida Employment Law Attorneys
Author(s): Brooke P. Dolara