Social media is becoming a workers’ compensation investigative tool many companies are beginning to capitalize on the value of social media as a recruitment tool. But it can also be useful for other purposes, as long as you don’t overstep legal and administrative boundaries. And one is workers’ comp investigations.
For example, if an employee who files a back injury claim and has strict lifting restrictions posts a photo on Facebook of himself lifting a heavy barbell, that’s a red flag. There doesn’t even need to be a photo involved ‘ an employee who describes his skiing trip while collecting workers’ comp may be setting himself up for trouble.
Jaclyn Millner, an attorney with Fitch, Johnson, Larson and Held and recent co-author of the report Social Networking and Workers’ Compensation Law at the Crossroads, and Carrie McFaul, a Federal Employees’ Compensation Act coordinator for the Army, recently offered tips on how to use social media to evaluate workers’ comp claims.
As Millner explains, attorneys are increasingly searching the Internet to uncover information about injured employees as part of the discovery process. She believes this form of discovery will eventually become customary, and the introduction of social networking evidence in workers’ comp litigation will become routine. Millner suggests it is imperative for workers’ comp attorneys to familiarize themselves with the issues involved in using social networking information in litigation.
Search engines such as Yahoo! and Google can be good sources of information about injured employees and Millner suggests defense attorneys use these routinely, in addition to social networking sites, such as Facebook and MySpace. However, one key is not to rely solely on social media to make a case for workers’ comp fraud.
‘You should still perform thorough discovery and investigation in workers’ compensation matters. This includes requesting medical records, possible surveillance investigations, interviews with coworkers, depositions of the employee and possible witnesses, as well as Facebook/social networking searches,’ Millner said. ‘Usually, Facebook evidence is best used to substantiate some other evidence you have found in your investigation.’
When it comes to using social media sites and whether to ‘friend’ someone to obtain information, the decision depends on whether the person making the contact is an attorney and whether the employee is represented by counsel, according to Millner. Attorneys cannot initiate contact with an opposing party represented by counsel because that violates the Rules of Professional Responsibility. Therefore, she explained, it is unlikely that defense attorneys can friend an employee represented by counsel on Facebook or another social networking site. Even though investigators are not attorneys, Millner said employers should still be very cautious about initiating contact.
McFaul agreed, saying such a practice ‘is not good business.’ She suggests keeping in mind laws and policies that present legal barriers to using social media as an investigative tool, such as the Health Insurance Portability and Accountability Act security standards. Compliance, she said, is the best protection to future legal challenges.
Privacy issues. Millner points out, however, that a privacy argument is unlikely to prevail in workers’ comp cases because people do not have a reasonable expectation of privacy on social networking sites. Courts have allowed social networking evidence to be admitted for various types of cases, including family law, employment law, and criminal law. Millner says most follow relaxed rules of evidence for workers’ comp, indicating that it is likely that such evidence would be admissible in workers’ comp litigation as well.
If an employee refuses or is unable to provide social networking information to counsel in response to a valid request for discovery, the employer may request this information from the social networking site operator directly. This could occur, for example, if an employee deactivated a social networking account or simply refused to turn over the information. Most social networking websites have privacy policies allowing them to provide user profile information in response to a narrowly tailored discovery request or court order, she said. However, an employee or social networking provider can argue that production of social networking documents is barred by the Stored Communications Act, Millner said. But an exception to the Stored Communications Act is that users can give permission to the social networking site to disclose information relating to their social networking profile, similar to an authorization for medical records provided to a record custodian at a medical facility.
The case law in this area is still very new and fluid. Millner said a key to an effective policy is keeping up-to-date on the latest developments.
