Whether we like it or not, the new workforce that will lead us into the future is firmly entrenched in the use of social media. These tools are essential for daily communication among employees, their friends and the world, but it's a two edged-sword. More information is helpful when making decisions, but too much personal information can be used against you, especially if it involves using social media for profit or inappropriate behaviors.
Employers are beginning to understand how to use social media to assist them in enlarging their workforce and seeking specific skills that benefit their businesses--and how to use it to catch employee fraud in workers' compensation. Their defense counsel are more aggressively pursuing legal means to gain access to social media sites to see what is being posted and displayed.
In a recent study, "Social Networking and Workers' Compensation Law at the Crossroads," Gregory Duhl and Jaclyn Millner examine how social networking sites have influenced and will continue to influence workers' compensation law. In one of their examples, EEOC vs. Simply Storage Management
LLC, the United States District Court for the Southern District of Indiana ordered employees who were claiming emotional distress to produce copies of their social network profiles. The court deemed admissible all social networking content relating to, revealing or referring to allegations of the legal complaint.
The Duhl and Millner report emphasizes, however, that workers' compensation lawyers must be able to prove that the information from an employee's social networking account was posted and/or written by the employee.
No specific workers' compensation rules address the disclosure of social networking evidence (obtained through informal discovery), but in those situations, rules regulating disclosure of surveillance evidence may apply. Collecting electronic information should be done in the same manner that lawyers have gathered and introduced "traditional" information into evidence. Although workers' compensation courts are governed by administrative rules, with regards to discovery, most states have adopted the state's rules of civil procedure. According to Duhl and Millner, even states with more restrictive discovery rules do permit surveillance as a form of discovery, and the discovery of social networking evidence is a form of surveillance.
And social media is being disclosed as proof of fraud. Popular social network websites such as Facebook are providing workers' compensation claims investigators with new ways to find fraud and combat false claims. Just as an employee may be observed in a public place or on video surveillance, a workers' compensation adjuster or defense counsel may be able to observe and search information that is publicly available online. An employee alleging a workplace injury that posts statements or photographs on a social network site that contradicts the workers' compensation claim may be unable to collect. If they are already receiving or have received benefits, these statements could be used to stop payments being made or recover payments. This information could also be used in criminal prosecutions for insurance fraud. The IRS and other tax authorities may be interested too.
In September 2010, a New York woman pleaded guilty to accepting $8,975 in workers' compensation benefits while working. On her Facebook page while out on workers' compensation, Alexis Muniz posted status updates that bragged about working as an apartment manager while collecting benefits. She was sentenced on felony charges of grand larceny and workers' compensation fraud.
Another employer, who had paid out more than $100,000 in benefits over a year and a half to an employee with an alleged back injury, found on MySpace that the injured employee listed her side job as a wedding photographer. The company sent representatives to conduct surveillance, and the employee was busted lugging heavy camera equipment with no signs of back pain.
As we all know, workers' compensation fraud is not a new issue, but the means to how the cheating employee is caught is new. The Federal Rules of Civil Procedure Section 26(b) (1) outlines the scope of discovery, which includes electronic information, and the definition is broad. Nonprivileged information that is "relevant to any party's claim or defense" is discoverable. By using this interpretation, employers and lawyers are quickly finding ways around privacy barriers. Social media sites have a permanent record of information that has the potential to provide insight to an individual's lifestyle, state of mind and behavior--information similar to what is observable in public. If it is relevant to the claim, it is discoverable.
As we enter this new arena of social media and watch how it seeps into workers' compensation, employers and lawyers will need to find ways to legally navigate around networking sites that can ultimately provide important information about an injured worker's behavior. As pointed out in the Duhl and Millner research paper, the gap is slowly and (most likely) quickly closing. From professional responsibility to discovery and privacy, social networking will continue to influence workers' compensation law.
MARK NOONAN is a managing principal and the senior knowledge manager for workers' compensation for the Casualty Practice within Integro Insurance Brokers.
The opinions expressed in this column are the author's and do not reflect the position of this publication or Integro Insurance Brokers.
In part two of this
two-part column, Mark covered options for employers and employees as we all enter this new social media driven workforce world.)
Read more at the WorkersComp Forum homepage.
May 2, 2011
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