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The challenge in this new world of workers' compensation is how do employers legally and ethically access, collect and properly utilize electronically stored information (ESI) on social media websites? Social media is transparent and nothing is confidential, but how can employers make this "treasured library" of information work for--and not against--them?

Employers will need to approach the use of ESI with caution and have procedures and employee manuals already in place. Employers may even want to have several media policies or best practice guidelines in place: one for employee personal use of electronic media at work (e.g., texting, email, blogs and Internet use), and one for company representation in online communications and employee code of conduct for online business-related communications.

Legal considerations must be given when locating and preserving this type of data whether it is photos, videos, or personal status updates. Employers should keep in mind that state workers' compensation systems are still guided by the various state rules of professional conduct and by the state or Federal Rules of Civil Procedure. (Visit http://www.americanbar.org and http://www.law.cornell.edu/rules/frcp/ for more information.)

EMPLOYEES AND COMMON SENSE

For employees, the issue should be obvious--especially when they are on the clock. Using company-owned hardware and networks is an invitation to have your personal, online behaviors become public. The use of company property is a privilege and not a right, and the employer or its agent has access to everything on their network. An employer can use specially designed software programs or word search tools to scan emails and related communications to protect their trade secrets, brand reputation, and to avoid usage that would be illegal or could create a hostile work environment. They can and will take action against employees that misuse their privilege.

For those out on workers' compensation, anything that demonstrates employees are working, that you are able to work or that you are engaging in activities that show you are capable of doing more than what was reported will create a damaging case against employees as claimants. As well it should.

Once in writing, any bragging or embellishing of accomplishments on social media sites can be used by employers, insurance companies, third-party administrators, lawyers and law enforcement.

LOGIC AND EMPLOYERS

Without some logical reason to do so, however, I do not believe that employers would review commentary on an individual's social media sites just because they are employees. Understand that employers do not have the resources to constantly monitor social media sites of employees. Yet with a logical reason for doing so, such as if employees are receiving disability benefits and are not maintaining contact with the employer and/or claim administrator, an employer might then look around social network sites.

They do not necessarily have free reign to act on what they find, though. For example, earlier this year, the National Labor Relations Board's regional office in Hartford, Conn., worked out an agreement prior to the hearing between Dawnmarie Souza and her employer. Souza was fired after she posted negative remarks about her supervisor on her Facebook page. In the settlement, her employer agreed to revise its overly broad rules about disciplining such discussions.

The key thing for employers and attorneys to remember is to not rely solely on social media when making a case for workers' compensation fraud. Make sure to also request medical records, interview co-workers, locate witnesses to the fraud and possibly launch surveillance investigations. The case law in the area of social media and workers' compensation is very new. Searching social networking sites isn't a bad idea; it should just be approached with caution.

Times change, but good advice 35 years ago is still good advice today. When I started out in this business, I was advised that when putting something in writing, read it as if it was on the front page of the newspaper. If I didn't want my name associated with it, I shouldn't send it. If I wasn't sure, I saved it and reread it again later in order to make a calm and rational decision. Not so long ago, communications took hours to days. It takes seconds now, but the same advice applies. Remember, the pen is still mightier than the sword.

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.

(Editor's note: In part one of this two-part column, Mark discussed how it's no surprise that social networking is playing a role in the court systems, particularly in finding out workers' compensation fraud.)

Read more at the WorkersComp Forum homepage.

June 2, 2011

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