The myriad surveys, articles, and headlines are clear: whether you are aware of it or not, your employers—both prospective and current—are monitoring (and, in some instances, controlling) your social media presence. [1] [2] [3]. As long as management-side employment law attorneys continue to tout a parade of horrible to their clients regarding social media, this trend will continue.
There are and have been countless warnings in the form of online articles, workplace policies, and various other friendly reminders: think twice before using social media to broadcast your stream of consciousness via poorly-thought status updates and 140-character snark-ridden commentary. Yet, employees continue to tank their present or prospective employment by making atrociously bad decisions relating to social media. [4] [5].
It is imperative that employees begin to grapple with the reality of social media: absolutely nothing is as private as you think.
To make this point as clearly as possible, consider the following hypothetical. Let’s say that you create a Facebook account and, in an overabundance of caution, adjust the privacy settings so that only you can see the posts. Setting aside the fact that it is highly unlikely that anyone would do this (what would be the point of being on social media?), understand that even in this scenario, if you end up in an employment law dispute, your posts, emails, messages, etc. may become entirely viewable by your employer, a judge, a neutral forensic expert, or–at a minimum–your attorney.
Employment law disputes are often painfully personal. Whether it be termination for a discriminatory reason, a breached employment contract, or a hostile work environment due to sexual harassment, the nature of employment law disputes are such that they center on the employee’s relationship with those in the workplace. As a result, when employment disputes rise to the level that an investigation is warranted to determine what has happened, everything about that employee’s relationship to their workplace might be fair game.
Such posts can help establish an employee’s claims; likewise, they can help defeat them. Thus, in matters of civil litigation, where the rules of evidence and civil procedure will govern the discoverability and admissibility of such evidence, posts, status updates, and emails relating to the elements of the litigation might very well become viewable by employers and their attorneys.
But, determining what material relates to the case and which does not is a complicated task. Reasonable minds may differ regarding what is relevant and what isn’t. Where an employer believes an employee is withholding posts, emails, etc. that are relevant to the litigation, discovery disputes may lead to judges ordering employees’ entire email, Facebook, and other electronic media subject to inspection.
I’ve had many clients be horrified to discover that their email and social media accounts need to be entirely open to inspection by—at a minimum—me. I’ve had to wade through clients’ social media and email to find relevant content. Along the way, I’ve come across a plethora of content that, I assure you, the parties to the communication never thought would be viewed by others. Sadly, I’ve also watched cases be torpedoed by highly embarrassing social media content that is tangential but nonetheless relevant to an employees’ claims.
So, consider this point again: absolutely nothing on electronic and social media is as private as you think. At the very least, then, think hard before using such forums for work-related gossip, snark, discussion, etc.; even better: save it for non-electronic forums altogether.
[1] https://www.usatoday.com/story/money/columnist/kay/2013/11/30/at-work-social-media-caveats/3765955/
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Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.