2015 Annual Convention. Workers Compensation and Social Media

Transcription

1 2015 Annual Convention Workers Compensation and Social Media Workers Compensation Committee 1.0 General CLE Hour April 29 May 1, 2015 Sandusky

2 Speaker Biographies Catherine F. Burgett Frost Brown Todd, LLC Columbus, Ohio Ms. Burgett received her BA from Denison University, her MBA from the College of William and Mary Raymond A. Mason School of Business, and her JD from the College of William and Mary Marshall-Wythe School of Law. Her professional memberships include the Ohio State Bar Association, Columbus Bar Association, and American Bar Association. Ms. Burgett divides her time between a traditional practice in labor law and employment work. Her labor practice includes working with clients to improve labor relations and resolve labor disputes, creating and assisting with corporate campaigns and representation elections, handling unfair labor practice charges, and representing companies through the labor arbitration process. Ms. Burgett s employment practice includes employment litigation, wage and hour litigation, and serving as counsel on all aspects of employer-employee relations. She was named to the Ohio Super Lawyers Rising Stars list in For additional information, please visit

3 The Proper Use of Social Media in Workers Compensation Cases Catherine F. Burgett Frost Brown Todd, LLC Columbus, Ohio Table of Contents I. What Is Social Media?... 1 A. Common view B. Expansive view II. Social Media Statistics III. Social Media Is Fertile Grounds for Employers... 2 IV. Social Media: The Plaintiff s Bar s Nightmare... 2 V. The Catch to Social Media... 2 A. Statutory protections B. Common law concerns C. Employment concerns D. NLRB Issues VI. Best Practices... 3 A. Social media: reducing your risk B. Social media: guidelines for monitoring employee use C. Be smart about your search The Proper Use of Social Media in Workers Compensation Cases i

4 ii Workers Compensation and Social Media

5 The Proper Use of Social Media in Workers Compensation Cases Catherine F. Burgett Frost Brown Todd, LLC Columbus, Ohio I. What Is Social Media? A. Common view. 1. Facebook. 2. Twitter. 3. YouTube. 4. LinkedIn. 5. Instagram. B. Expansive view. 1. Yellow Pages. 2. Angie s List. 3. Flickr. 4. Amazon. 5. TripAdvisor. 6. ebay. II. Social Media Statistics. A. Nearly 50 percent of active Internet users have a Facebook account. B. There are over 1 billion Facebook users. C. Every minute, 24 hours of video content is uploaded to YouTube. D. YouTube is more popular than cable television. E. Every second there are 8000 discrete users who like a photo on Instagram. The Proper Use of Social Media in Workers Compensation Cases 1

6 III. Social Media Is Fertile Grounds for Employers A. Case law examples. B. Real world examples. IV. Social Media: The Plaintiff s Bar s Nightmare A. Plaintiff s firms are now offering advice on safe social media postings. B. Plaintiff s firms are now offering to review social media before filing claims or cases. V. The Catch to Social Media A. Statutory protections. 1. Federal laws prohibit unauthorized access to, or interception of, electronic information. 2. Laws at play: SCA, CFAA, ECPA. 3. Among other things, this means no: a. Snooping through private ; b. Using keystroke software; c. Spying on text messages; d. Hacking online accounts; or e. Sneaking into private groups. 4. Many state laws prohibit employers from taking action based on off-duty conduct. 5. Facebook Password Laws laws without a problem. a. California, Delaware, Illinois, Maryland, Michigan, and New Jersey. b. Several more considering similar laws. B. Common law concerns. 1. Invasion of privacy/intrusion upon seclusion. a. Intentionally intruding upon the private affairs of another if the intrusion would be highly offensive to a reasonable person. b. Offensive. c. Reasonable. d. Inherently fact-specific. 2. Intentional infliction of emotional distress. C. Employment concerns. 1. Third-party concerns. Without proper safeguards, employers may be considered responsible (and potentially liable) for the actions of their employees. a. Defamation. 2 Workers Compensation and Social Media

7 b. Misappropriation of trade secrets. c. Negligent hiring or retention. 2. Discrimination/retaliation. a. TMI concerns employees often use social media to discuss protected classes. b. Posts, comments, and other messages may contribute to a hostile work environment. c. Without guidelines hiring, firing, and discipline can be inconsistent. d. Employer/supervisor posts. i. Calling employees liabilities. ii. Getting drawn into arguments online. iii. Responding to posts. D. NLRB Issues. 1. Section 7 of the NLRA. Protects both union and non-union employees who participate in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Protected concerted activity includes two or more employees acting together to improve terms and conditions of employment. Protected concerted activity does not include: a. Expression of individual gripes; b. Remarks that are threatening or discriminatory; or c. Comments that are over-the-top harassing or disparaging with no substantive value. VI. Best Practices A. Social media: reducing your risk. 1. Draft and implement a policy for employee use of social media. 2. Establish internal guidelines for monitoring employee use of social media. B. Social media: guidelines for monitoring employee use. 1. If you research applicants and employees online: a. Include a clause in employment application to obtain consent to an Internet search. b. Ask a non-decisionmaker to conduct search and give you only information you need to know. 2. Be smart about the search (You get what you pay for). a. Document search results (print screen captures). b. If you use a third party for the search, be mindful of FCRA obligations). The Proper Use of Social Media in Workers Compensation Cases 3

8 C. Be smart about your search. 1. Justify your searches with objective reasons. 2. Use consistent search methods every time. 3. Create a form for the searcher to use. 4. Take the information with a grain of salt. 4 Workers Compensation and Social Media