OMG?!? You Posted What on Facebook???


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What follows is not at all limited to the type of lawsuit filed, but serves as an overall cautionary tale to employers whose employees spend time on the social media giant, Facebook.

Recently, a federal court in Indiana allowed an employee’s Americans With Disabilities Act (ADA) lawsuit to proceed based upon a reference regarding the employee’s medical condition in a Facebook post. The reference was vague, but the court didn’t care, ruling that there was a question of fact as to how the medical records had been obtained.

The employee – who had fallen and injured himself and subsequently gone on disability leave – filed two lawsuits against his former employer. The first lawsuit apparently prompted another employee to post on her Facebook page a comment stating “Isn’t it amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back at work, especially when you consider [plaintiff employee’s] shoulder injury kept him away from work for 11 months and now he is trying to sue us.” Plaintiff employee’s second lawsuit alleged that the Facebook post violated privacy provisions under the ADA, and had caused prospective employers not to hire him. The poster’s management role in the company was processing worker’s compensation claims.

Although the employer argued that the plaintiff employee had voluntarily and publically disclosed his condition in the first lawsuit, the court rejected the argument and allowed the claim to proceed against the employer. That employer must now defend against substantive allegations in the lawsuit.

The short term lesson here is that employers must scrutinize how employee medical information is obtained, how it is stored, and who has access to the information. In order to ensure the confidentiality of employee medical information, employers should have clear policies and train employees regarding the importance of keeping the information confidential.

The longer term and in-your-face lesson, and why this matters even more, is the importance of having in place a social media policy regarding your company’s position on social media and the workplace. If you don’t already have a social media policy addressing the problems of such posts, your company needs to implement one as soon as possible. Most social media policies cover the permissible and impermissible as well as the consequences of using social media and intermingling the employee’s workplace role with personal life outside of the office.

Companies should probably not outright ban social media altogether, but instead outline what is acceptable when representing the company, and also what should never appear in the employee’s personal account. (And companies subject to NLRB review should be doubly cautious as the Board takes a very strong stance against overly restrictive social media policies in general.) Savvy companies recognize the potential of social media as one of many communications tools and tactics to effectively advance the mission and goals of the company; however, in order to assure responsible and appropriate use of social media, policies providing guidance and enforcement if abused must be put in place.

Hilary Atkins
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Posted In: Legal

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