Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Bucharest Romania - Jan 23 2014: Photo of Facebook web page. Facebook is an online social networking service. Its name comes from a colloquialism for the directory given to students at some American universities.

At the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

The legal issues surrounding social media accounts and courts are myriad and complex. For help in making sense of it all, contact the attorneys at McBrayer.

Brittany KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

Vetting Employees via Social Media – Walking the Digital Tightrope

As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern.

From the outset, employers should be wary of discovering information about candidates through their social media profiles that might form the basis for employment discrimination in the hiring process. This information can ultimately have legal repercussions with regard to antidiscrimination laws at the local, state and federal levels. For instance, an applicant in Neiman v. Grange Mutual Casualty Co.[1] overcame a potential employer’s motion to dismiss in an age discrimination suit by noting that his college graduation year was visible on his LinkedIn profile. The court in that case agreed that the knowledge of the applicant’s date of college graduation was enough to put the employer on notice of the applicant’s age. The potential for such liability should prompt employers to review just how they use social media in the hiring process.

Even with the potential for liabilitVector Concept Of Human Resources Management.y, however, social media still has benefits for employers in the hiring and vetting process. As noted at the outset, Comedy Central could have vetted the public comments of Trevor Noah via social media such as Twitter to determine how his public demeanor might affect his tenure as the host of The Daily Show. Public social media contributions by applicants can give employers a sense of an applicant’s maturity, demeanor and overall personality to determine whether that candidate is a good fit with company culture. This information can also help a company determine whether a candidate will serve as a competent public representative in the digital realm.

With such significant risks and equally significant rewards, how can an employer vet an applicant through social media in a safe and effective manner?

First, an employer should create a formal policy concerning social media vetting and abide by it. The policy should cover what sites will be investigated in the hiring process, as well as the types of information that will be viewed and documented. Not all social media sites are equal, and employers should determine what types of social media best provide the targeted look at the applicant the employer needs, eschewing others. The policy should also require that all applicants are informed that their social media accounts will be vetted and to what extent.

Second, an employer should impose a firewall between the person conducting the social media search and the hiring decision-maker so that only non-discriminatory vetting information enters the hiring decision process. If this is not practical, an employer could hire a third party to conduct a search (this, however, triggers provisions of the Fair Credit Reporting Act and certain obligations of disclosure on the part of the employer).

Finally, counsel should review social media vetting policies in a regular fashion for compliance with EEOC regulations and evolving legal precedent. Social media is still expanding boundaries and blurring lines between work and life, and such rapid technological and regulatory evolution demands continuous and sophisticated monitoring.

The attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC, can help you craft well-drafted polices for social media investigations in applicant vetting, providing you with both a powerful decision-making tool as well as peace of mind in using it.

Brittany Blackburn KochB. Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012)

McBrayer & Blackstone Media Present 8 Do’s & Dont’s of Social Media!

Software concept: cloud of program icons

LEARN HOW TO KEEP YOUR SOCIAL MEDIA MARKETING EFFECTIVE AND LEGAL AT THE SAME TIME.

McBrayer has teamed up with Blackstone Media to present ways that you can use social media to generate leads for your company while staying within the legal parameters. Presenters Amy Cubbage, Cindy Effinger, and Taylor Trusty will provide practical advice that you can use immediately in your marketing, hiring/human resources, and crisis management plans.

 

Join us on 8/25 from 8:30 a.m. to 10 a.m.

(breakfast provided)

Central Bank
9300 Shelbyville Road
Community Room, 2nd floor
Louisville, KY 40222

REGISTER TODAY!

Click here and use “MMLK15” for a discounted rate of $15 per person.

NLRB Judge Adds to Uncertainty Regarding Work Rules and Social Media Policies

On June 4, 2014, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) held in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, that certain work rules and social media policies designed to protect customer privacy constituted unfair labor practices. The rules and policies at issue applied to employees who worked on customers’ premises.

ALJ Raymond Green ordered the company to cease and desist from enforcing any work rule or policy that:

  • Prohibits employees from disclosing the location and telephone number of employee customer assignments, as it could inhibit the ability of a labor union to meet and communicate with employees;
  • Prohibits employees from engaging in boisterous or disruptive activity in the workplace, based on prior Board decisions, because the rule is “sufficiently imprecise” and could encompass any disagreement or conflict among workers protected by Section 7 of the National Labor Relations Act (NLRA);
  • Prohibits employees from initiating or distributing chain letters, sending communications, posting information, or using personal computers in any manner that may adversely affect company business interests or reputation, because the rule overreached by including personal computers; or
  • Prohibits employees from photographing, taping, or recording any person, document, conversation, communication, or activity that in any way involves the company, its associates, customers (except to the extent that the customer disallows photographing or filing on its premises), or other individual with whom the company intends to do business. The ALJ opined that, on balance, the employees’ rights generally outweighed the employer’s well-intended interest in customer privacy.

The ALJ upheld the company’s policy prohibiting employees from disclosing customer information to other customers, third parties, or members of the employee’s family. He reasoned that such a rule would not unreasonably deter employees from talking to one another or the union about terms and conditions of employment. Some aspects of the ruling conflict with other ALJ decisions, adding to the uncertainty about which work rules or social media policies the NLRB and courts will ultimately determine to be impermissible. As ALJ Green observed, “[A] legitimate conflict of principles … will require Board and Appellate Court clarification.” The company is expected to appeal the decision to the full Board and, if necessary, to the appellate court.

This case is a perfect example of the NLRB General Counsel’s continued enforcement efforts to focus on work rules and policies that conceivably limit employee rights to discuss wages, as well as other terms and conditions of employment. Unfortunately, the ruling could affect employers who are targets of union organizing campaigns, not just those who already have collective bargaining agreements in place. The bottom line is that this ruling is another reason why all employers should regularly update and review their handbooks and policies with their employment law attorneys.

Kembra Sexton Taylor

 

 

 

 

 

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

Facebook Friends & Workplace Enemies, cont.

On Monday, I provided details about the Ehling case wherein an employee had made an inappropriate Facebook post and, unbeknownst to her, had that Facebook post sent to her manager by a Facebook “friend” and coworker.

When the plaintiff, Ehling, was suspended from her hospital job because of the post, she sued in federal court alleging a violation of her rights under the SCA. The District Court found that non-public Facebook wall posts are protected by the SCA. A key factor in the Court’s ruling was that Ehling had configured her privacy settings so that her posts were only viewable by her Facebook friends.

Despite this protection, the Court held that the hospital was not liable because one of the SCA’s exceptions applied. Specifically, the exception was conduct authorized “(1) by the person or entity providing a wire or electronic communication service; [or] (2) by a user of that service with respect to a communication of or intended for that user.” Because Ehling had “friended” her coworker, giving him access to her Facebook wall, and the coworker had provided management with the posting without any solicitation, the exception applied.

If the hospital had asked the paramedic for the information or to keep them apprised of a fellow employee’s online activity, it would have led to a SCA violation. The access would be unauthorized.

The lesson learned from Ehling is that employers should be cautious when presented with an employee’s social media account material by another employee. While the posts may warrant some kind of action being taken against the subject employee, if the information is solicited or requested by the employer, it could lead to a federal violation.

 

Cindy Effinger

 

 

 

 

 

Cynthia L. Effinger, an Associate of the firm, joined McBrayer, McGinnis, Leslie & Kirkland, PLLC in 2012. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. She also has experience with First Amendment litigation, securities litigation and complex litigation. Ms. Effinger may be reached at (502) 327-5400, ext. 316 or ceffinger@mmlk.com

This article is intended as a summary of  state and federal law and does not constitute legal advice.