Several weeks ago, I had the pleasure of talking to a fraternity at UAB about the impact of Social Media in the "real world". Besides my own personal interest in this area, the impact social media has on my clients, and all the crazy stories out there, my 2 sons, 21 and 23, are regular users of social media. Over the past couple of weeks, there have been a lot of stories on employers asking employees for the passwords to their personal social networking sites. Although there is no law, per se, prohibiting this, it is not a good idea for many reasons. In no particular order:
1. It is probably against the terms and conditions of the use agreement with the host.
2. Employers may find out more information than they really should know, leading to claims of illegal conduct, including discrimination based on age, race, sex, disability, GINA, etc.
3. Under the Stored Communications Act, it is illegal, both civilly and criminally, for an individual to access another persons social networking site. It should be noted that the Justice Department advised Congress that it would not prosecute such violations.
In California, an employee who was responsible for the social media of her employer was injured in a car accident. She used both company owned and personal social media sites to promote the business. While she was recovering from her serious injuries, the company accessed her personal sites to continue promoting the company. She sued, alleging a violation of the Stored Communications Act, and the court is allowing the case to proceed to trial. In another case, the ex-girlfriend of an undercover detective in New Jersey was charged with identity theft after posing on line as her ex-boyfriend, and making defamatory statements about him.
Speaking of defamation, in Georgia, a Gwinett County jury recently returned an $900,000 verdict against an individual who defamed the plaintiffs (a Husband and Wife) on social media sites. The plaintiffs had asked the jury for $48,000 for each of them. This was only the most recent of three social media defamation cases over the past 15 months. According to the Daily Report, each of these cases resulted in six figure verdicts.
In Washington state, a judge has ruled that an employee who was fired after she sent her manager a number of Facebook messages about her mental state and the fact that she was thinking of killing herself would proceed to a jury trial. Ms. Peer was seeking treatment for depression, and she was transferred to an early shift at work. She complained to her boss about her depression, crying, stress, that she was thinking about committing suicide and that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning". Although she had a release from her doctors, the company terminated her after she refused to have her medical providers complete accommodation paperwork. The company, based on the Facebook comments, was "concerned that you are not able to perform your job functions without accommodation, and that attempting to perform your job functions now presents direct risks or threats."
In New Jersey, a criminal defendant was on trial for selling 1,500 Ecstasy pills to an undercover detective. Although the trial judge instructed the jurors on a regular basis not to conduct internet research, the foreman confirmed his thoughts through internet research that the defendant would get a minimum of 10 years in jail if found guilty. The foreman refused to convict, resulting in a hung jury. After 2 jurors complained separately, the trial judge found the foreman guilty of criminal contempt and fined him $500. He was facing up o 6 months in jail and a $1,000 fine.
In New Orleans, an Assistant US Attorney admitted making hundreds of posts at NOLA.com under another name concerning a criminal investigation into a landfill. He was removed from all cases on which he commented by the US Attorney. Among the comments he made were allegations that one of the judges "loves killers", and that the US Attorney was taking credit "for other people's hard work. It is the assistants and agents who do the work and should be congratulated".
I cannot make this stuff up. It happens every day. Be careful what you do on social networking sites and on the internet. It can get you in a lot of trouble, fired, embarrassed, sued, arrested or worse.