Facebook is one of many social networking sites (SNS) where individuals reconnect with old classmates, provide up-to-the-minute details on their daily lives, and share pictures and postings with friends and family. However, Facebook users often wander from the mundane to the insane by posting inappropriate jokes, videos of wild nights on the town and photos of scantily clad friends, acquaintances or even strangers. And what employees (or supervisors) are posting on SNSs during or after work hours can have a very real legal impact on employment matters.
A recent opinion from the U.S. District Court for the Southern District of Indiana addresses the relevance of information posted by employees on SNSs. In Equal Employment Opportunity Commission v. Simply Storage Management LLC, two plaintiffs who alleged sexual harassment resulting in severe emotional distress were required to turn over significant portions of their SNS profiles and postings, including videos and photographs. The court reasoned that regardless of whether the SNS content was marked "locked" or "private," some of the information contained in plaintiffs' SNS profiles was relevant to their claims and thus was discoverable.
When considering the proper scope of SNS discovery, the court stressed the expansive boundaries of relevance, but also noted that it was not without limits. Accordingly, the court allowed discovery of all profiles, postings, messages, photographs and videos that "reveal, refer or relate to any emotion, feeling or mental state, as well as communications that reveal, refer or relate to events that could reasonably be expected to produce a significant emotion, feeling or mental state." Thus, the discoverable SNS content extended far beyond that which directly referenced the alleged sexual harassment and severe emotional distress.
While this ruling highlights that access to SNS profiles can be beneficial to employers defending against claims brought by employees, employers must remember that this can and will work to their detriment as well. Plaintiffs will likely have the same access to the SNS profiles of any alleged wrongdoers — thus, the content of managers' SNS profiles may be discoverable during employment related litigation. Therefore, employers should establish guidelines regulating the use of SNSs by members of management.
While banning managements' use of SNSs may be the ideal solution to protect employers from unfavorable SNS discovery, in today's world, it is not a practical solution. Employers should instead create guidelines regulating the content of managers SNS profiles and postings. For example, members of management (like all other employees) should be prohibited from posting content on SNSs related to the employer, the employer's products or services, other employees, etc. Additionally, managers should be prohibited from posting content of a racial or sexual nature.