Law Practice Today | February 2013 | Technology/ABA TECHSHOW
February 2013 | Technology/ABA TECHSHOW 2013
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The Verdict Is In: Social Media Can Cause Legal Catastrophes

By Kurt Olson

Most people would tell you that they value their privacy. However, these days we all rush to publish the most intimate details of our private lives on Facebook, Twitter and other social media outlets. Whether desiring to ascend a bigger stage, make more friends without the burden of face-to-face contact, or reach a bigger audience for their viewpoints, most remain blissfully ignorant of the potentially devastating consequences of thoughtless posts.

Unfortunately, these consequences can include criminal prosecution and catastrophes in civil suits. A case of mine—one of those cases that robs you of sleep because of what might have been—illustrates this point.

A client (let’s call her Annie) seemed to have a pretty good claim against an employer for constructive wrongful termination; Annie had to resign because of abusive practices in the work place. Various laws protect workers from having to endure such environments, and these laws include worker’s compensation statutes.

The abusive practices in this case became so severe that Annie’s mental health was at risk, and perhaps her mental health (or lack thereof) helps explain her later behavior. The abusive practices included the employer severely criticizing Annie for failing to appropriately discipline employees under her control; repeatedly calling her at home when she was taking legitimate sick days to tell her that she needed to stop being a slacker; and writing scathing performance reviews which sharply conflicted with others’ reviews of Annie’s actual performance. Because of these practices, Annie brought a claim against the company claiming that it had caused generalized anxiety disorder, post-traumatic stress, and depression.

Annie filed her claim with the Worker’s Compensation Board. After each side filed various documents with the board, a hearing was scheduled. Annie was a convincing witness, and she had two witnesses who either had suffered some of the same abusive practices or could testify about Annie’s good performance and the employer’s questionable practices. After our presentation, I was confident we’d established a strong case that the employer should have to compensate Annie.

The lawyer for the employer began by calling Annie as his first witness. His goals were to discredit her testimony, to show that the company had not caused her injuries, and that her injuries were not as severe as she claimed. He succeeded in tilting the hearing officer’s scales in the company’s favor because Annie had forgotten to tell me about some rather damning evidence.

After some preliminary questions, the company’s lawyer pulled out a Facebook posting in which Annie had regaled her “friends” with her weekend frolic at a Caribbean resort with one of our two witnesses. The tale recounted how the two had attended a wine tasting, cavorted on the beach with some bronzed Adonises, and generally had a swell time – all while Annie was suffering from generalized anxiety disorder, post-traumatic stress syndrome and depression. I felt like I’d been kicked in the gut; even though I had a chance to ask Annie whether her therapist had recommended such a trip to help her deal with her anxiety (he did), the damage was done.

More damage ensued. Annie had alleged that she could never return to work at company headquarters, but she would accept reassignment elsewhere. Upon further questioning by the company’s lawyer, Annie repeated what she had said in her complaint. Then, the company’s lawyer pulled out another document: an email from Annie to a manager in which she suggested that she would accept an assignment at some other location or at headquarters under a different supervisor. After bending double from the kick to the gut, I now felt the sting of an uppercut to my chin, sending me reeling into the corner of the hearing room.

When it was over, the hearing officer informed us that she would send out her opinion within 30 days. Over dinner, I gave Annie the bad news: I had seen the hearing officer frown only twice during the process: when she heard about the Facebook posting and when she heard about the e-mail. I told Annie the likelihood of a ruling in our favor was not good, but I didn’t have the heart to tell her that she should have told me she was a social media chatterbox and liked to share her thoughts in unencrypted emails.

A word to the wise to all your clients is in order: Before posting, texting or e-mailing, resist the urge. The bigger stage you seek is made of cracked, splintered floorboards.

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About the Author

Kurt Olson is an associate professor at the Massachusetts School of Law in Andover, MA. He can be reached at 978.681.0800 ext. 131.

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