An Indiana company recently found itself on the losing end of a courtroom battle over a Facebook post. The dispute started when an employee decided to praise one co-worker and shame his colleague in connection with injury, recovery, and return to work. Specifically, the co-worker posted:
Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.
Not surprisingly, George was not happy with this post. He alleged that the poster (the person in charge of processing workers compensation claims at the company) learned about his injury through medical records he submitted in connection with his workers compensation claim and his leave request. This could be a big problem for the employer, as the Americans with Disabilities Act (ADA) (among other laws!) requires it to keep those records confidential. [Practice tip—medical info should always be maintained in a separate, confidential file. It should not be kept in the personnel file!!]
So- what’s an employer to do? The National Labor Relations Board (NLRB) and other enforcing agencies are taking a strong stance against limiting the rights of employees to post freely on social media. But here an employee took it upon herself to post a co-workers confidential information – and ended up buying her employer an expensive lawsuit.
This case serves as yet another reminder that social media has created a variety of pitfalls for employers. While you can never eliminate liability, responsible employers must give sound thought to a social media policy, must periodically update the policy as this cutting-edge law changes, and must train managers and employees to ensure that the policy is properly understood and implemented.