Social media and Workers’ Compensation litigation: 5 key points for employers
November 14, 2017
Facebook, Twitter and other platforms are part of our daily lives. So, what risks are associated with leveraging social media in litigated Workers’ Compensation claims?
We live in a digital world and, for many, social media is a part of our daily lives:
- Facebook: Over 1.3 billion users per day
- Instagram: 500 million users per day
- Twitter: 328 million users each month
- LinkedIn: 106 million users per month
But what drives us to use these platforms? Simply put, we love to talk about ourselves and pass on information. In fact, self-talk accounts for approximately 30-40% of verbal conversations but increases to nearly 80% on social media.
With an estimated $30 billion in annual property/casualty and auto fraud, it’s no surprise that insurance departments and providers may actively review social media as part of investigations to gain insights about a person’s behaviors, activities and more. Social media may provide information relevant to confirming policy application information, facts of a loss or alibi, verifying disability status, and locating witnesses.
Photo posts may also contain more than the eye can see, including metadata that can offer additional details (e.g., a person’s location or timestamp).
What are the risks related to accessing information on an employee’s social media account and seeking to use it in court?
Rules related to accessing social media information may seem ambiguous and, for many employers, the challenge with social media evidence lies in understanding privacy concerns.
According to Title 18 U.S.C. §2511 (g) of the Electronic Communications Privacy Act: “It shall not be unlawful under this chapter or chapter 121 of this title for any person to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public.”
It’s important to recognize the fundamental nature of social media. Its core purpose is to publicize information and connect with others. Even if an individual restricts content accessibility to a select group of friends or followers, it has arguably not been kept private.
However, just because it can be accessed, does not mean the information is admissible in a litigation context. As with all discoveries, any evidence obtained has to be relevant to the case at hand and must comply with applicable laws and procedural rules.
- The employer’s electronic communication policy
- Obtaining information from the claimant’s company-provided computer consistent with the employer’s policies
- The timing of public social media searches after an injury is reported
- The scope of social media searches may be broader than the claimant (e.g., the claimant’s spouse, friends, witnesses, etc.)
- Whether information collected from social media may be appropriate and admissible for use in litigation
Social media is always evolving, so beyond the five points mentioned above and other precautions and policies, employers need to keep on top of changes in the social media environment that may affect potential litigation.