Although employees play an integral role in businesses, hiring the wrong ones can become a costly mistake for employers—especially if employees try to falsely manipulate state employment laws. Workers’ compensation and unemployment benefits fraud claims cost businesses billions of dollars every year. Employees can also harm both corporate morale and finances by violating non-disclosure agreements (NDAs), disregarding non-competes and harassing fellow co-workers.
However, employers have an invaluable asset in their litigation tool chest for combating against these fraudulent schemes: social media screen captures. This was illustrated in Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2: 11-cv-03305 (WJM) (D. NJ Aug. 20, 2013), where a federal court in New Jersey held that a hospital did not violate the Stored Communications Act (SCA)—which protects private social media content from discovery in civil cases—when it received screenshot records of a hospital employee’s incendiary posts from one of her co-workers and used it as grounds for suspending her. Although the employee had restricted the view of the posts so that only her Facebook friends could see it, the hospital was authorized to view the posts under the SCA’s authorized user exception because the co-worker who made screenshots of the posts was authorized to view them.
If used properly, social media screenshots can be crucial in tilting employee-related legal decisions in your favor. New amendments to the Federal Rules of Evidence will also make admitting screenshot-captured evidence easier than it has been before by treating it as self-authenticating. Self-authenticating evidence can be accomplished by capturing relevant metadata for any web content, as well as having a trusted-third party provide an affidavit to further establish the validity.
Some ways you can use social media evidence to further your case include:
Collecting Evidence for Discovery and Depositions. Litigators can use incriminating or contradictory social media posts, images and conversations to build case timelines, locate custodians of discoverable evidence, and carry out early case assessments to predict the likelihood of prevailing at trial or in an administrative hearing. Lawyers can also use this data to challenge party and witness alibis and ask targeted questions during depositions.
Building Evidence to Support a Temporary Restraining Order or Injunction. Budding entrepreneurs are increasingly turning to LinkedIn as a way to advertise their services and connect with potential clients. Employers who use NDAs and non-compete agreements can review their employees’ and contractors’ LinkedIn resumes, connections lists, posts, and testimonials section to see whether they are launching competing businesses, working with current clients, or taking other actions to divert business.
Force Claimants Into Dropping Their Claims or Settling. If it’s discovered that employees are exaggerating or being untruthful about workplace injuries or harassment from contradictory social media posts and conversations, you can submit the evidence to state employment boards as grounds for denying unemployment or workers’ compensation awards. Therefore, you can use this evidence to pressure claimants into dropping their claims or force them into a favorable settlement.
Social media evidence can have a major impact on your case if used the right way. Page Vault provides the tools and services necessary to ensure you will be able to submit verified, self-authenticated screen captures into evidence at trial or during employment board proceedings.
This post was authored by Eric Pesale, an attorney who writes about eDiscovery, data security and other legal topics for law firms, publications, and companies, and is the founder and chief legal contributor of Write For Law. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in CSO, the New York Law Journal and Above the Law. Eric can be reached at firstname.lastname@example.org or on Twitter at @ericpesale.