Facebook Becomes a Questionable Friend of Workers Compensation
By Jon L. Gelman1
Social networking’s popularity has become a two-edged sword as a tool in the management, investigation, and disposition of workers’ compensation claims. Over the last several years, there has been an exponential explosion in the use of this technology on the Internet. The challenges to properly access and effectively utilize the electronically stored information2 [ESI] result in procedural and ethical ramifications for the workers’ compensation community.
This new form of communication involving interpersonal and social data has been embraced by millions of Internet users worldwide through the launching of such services as Facebook3, MySpace4, YouTube5, Twitter6, blogs, and Meetup7. Facebook, launched by a young Harvard student, Mark Zuckenberg8, in February 2004, now has 500 Million9 users and is the most visited10 site on the Internet. The average Facebook user has 130 “friends.” Each month the site accumulates over 20 billion bits of information and 3 billion photos by the mutual consent of those “on” the system. The “share and connect”11 principles utilized by Zuckenberg is the “gifting theory.”12 When participants consensually contribute their social and personal” data to the electronic storage system. Facebook defines itself as “a social utility that helps people communicate more efficiently with their friends, family, and coworkers.” Social networking provides a radically transparent Internet experience where nothing is confidential.
Internet searches by employers are widespread. Already 48% of employers have reported that they monitor13 potential employees based on an investigation of provocative data and photos found on the Internet. This new model for information must be carefully utilized in workers’ compensation claims since due process is a key element.
Workers’ Compensation claims are, for the most part, based on individualized factual situations based on a collection of social experiences involving work-related events. The collection of ESI on social networks, such as Facebook, has become a treasured library of information that can be utilized to defend or prosecute these matters. Accessing and effectively using ESI becomes a rather complicated and hazardous experience for claims personnel and lawyers.14 The use of social networking in a workers’ compensation claim environment should be approached with a cautious methodology.
Even though workers’ compensation15 claims are legislatively intended to be a summary, remedial and expeditious in adjudication, the players are bound by both the informality of the proceeding and the structured formality of evidentiary rules. Most state workers’ compensation systems, while allowing some informality, are still guided by the Federal Rules of Civil Procedure16 (FRCP) and the Rules of Professional Conduct17 (RPC).
Data harvesting by “befriending” the injured worker, or those in his or her social network, or becoming a “fan” of the employer, is akin to surveillance. ESI gathered from such sites as Facebook can be utilized to demonstrate the state of mind of the parties and can be obtained directly from statements made by a party, agent of the employer, or through user relationships, i.e. co-workers, company management personnel, or friends. The data could be personal status updates, photos or videos, on or off-the-job activities, or events. Locating, archiving, and preservation of this data must comply with legal considerations and are vulnerable activities for employers. In a recent survey, it has been reported that organizations and employers have been sanctioned18 by the courts for illegal activity and that 49% of the sanctions deal with the failure to properly preserve ESI evidence.
Investigators19 hired to gather the information, whether hired by employers, insurance carriers, or attorneys, are required to maintain a chain of custody over the data and act in a fashion that would prevent the spoliation of the evidence. While it can be assumed, by the terms of service20 offsite operators, that there is no reasonable expectation of privacy of the evidence gathered.
Attorneys directing investigations must act responsibly so that violations of law are not committed to obtaining the information and that the attorney’s actions comply with the Rules of Professional Responsibility. An attorney cannot direct an agent or client to violate a law or commit a fraudulent, deceitful, or dishonest act. Investigators cannot be instructed to illegally “friend” an individual. Likewise, clients cannot be instructed to illegally manipulate ESI. The lawyer may advise their clients about the lack of privacy 21 of the social networking site and the need to remove any data that would not be appropriate to post. The RPCs prohibit an attorney from advising their client to obstruct justice by destroying, or in this case, removing, ESI.
In proceeding with workers’ compensation litigation, where there are disputes as to fact, legal representatives must use formal discovery 22 requests, including production requests, interrogatories, and subpoenas23. The attorneys should request that parties to the claim, and those to be called as potential witnesses, be required to provide the identification information they utilize for social networking sites. Data sets should be identified through the use of discovery, including depositions. All ESI that could be admissible as evidence at the time of trial should be secured and preserved as early in action as possible. In some instances, social networking evidence has even resulted in workers’ compensation fraud24 convictions.
In the formality of a judicial setting, the court becomes the ultimate gatekeeper in determining what information is fairly gathered 25, relevant 26, and admissible for trial. The judges are required to have the parties authentic the information offered at the hearing and to filter out hearsay evidence27, which may include only gossip and rumor, i.e. statements made by 3rd parties.
Social networking, and the ESI that they gather, is a new form of communication that must be considered in the processing of disputed workers’ compensation claims. As Facebook and other sites expand28 their applications to link the world into a more social and personal Internet experience, those involved in the handling of claims and cases must be properly prepared to access this vast library of individualized information for use in an evidential setting. Ultimately the workers’ compensation hearing officers will have the final task of determining how friendly these sites will become to the judiciary process.
1 The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 email@example.com have represented injured workers and their families who have suffered occupational accidents and illnesses.
© 2011-2023 Jon L Gelman. All rights reserved.
Recommended Citation: Gelman, Jon L., Facebook Becomes a Questionable Friend of Workers Compensation, www.gelmans.com (2022), https://www.gelmans.com/ReadingRoom/tabid/65/ArtMID/1482/ArticleID/1008/preview/true/Default.aspx
2 Rule 34 FRCP, http://www.law.cornell.edu/rules/frcp/Rule34.htm
10 http://www.businessweek.com/news/2010-03-17/facebook-surpasses-google-in-weekly-u-s-hits-for-first- time.html
13 Sarah O’Brien, Employers check your social media before hiring. Many then find reasons not to offer you a job, CNBC, Aug. 10, 2018, https://www.cnbc.com/2018/08/10/digital-dirt-may-nix-that-job-you-were-counting-on-getting.html
14 Gregory M. Dahl, Jaclyn S, Miller, Social Networking and Workers’ Compensation Law at the Crossroads, Pace Law Review, Vol. 31, No. 1, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026
15 About Workers' Compensation, gelmans.com, http://www.gelmans.com/PracticeAreas/WorkersCompensation/tabid/64/Default.aspx
18 Records Management Regulations, Policy, and Guidance, Federal Records Management, National Archives, https://www.archives.gov/records-mgmt/policy
19 The Duty to Preserve Evidence, ABA, https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/214612/Chapter%201.pdf
20 Facebook, Terms of Service, http://www.facebook.com/terms.php
22 How Courts Work, ABA, (11/28/2021), https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/discovery/
24 Surveillance and social media posts lead to felony arraignment of San Bernardino mechanic accused of workers’ compensation fraud, https://www.insurance.ca.gov/0400-news/0100-press-releases/2022/release057-2022.cfm
25 Rule 702. Testimony by Expert Witnesses, https://www.law.cornell.edu/rules/fre/rule_702
The author, Jon L. Gelman, practices law in Wayne, NJ. He is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 firstname.lastname@example.org have represented injured workers and their families who have suffered occupational accidents and illnesses.
Recommended Citation: Gelman, Jon L., Facebook Becomes a Questionable Friend of Workers Compensation, www.gelmans.com (2020), https://www.gelmans.com/ReadingRoom/tabid/65/ArticleID/1008/ArtMID/1482/preview/true/Default.aspx
© 2001-2023 Jon L Gelman. All rights reserved.
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