Facebook Becomes a Questionable Friend of Workers’ Compensation

Internet searches by employers are widespread. Already 35 percent of employers have reported that they reject potential employees based on an investigation of provocative data and photos found on the Internet. This new model for information must be carefully utilized in workers' compensation claims since due process is a key element.

Workers' compensation claims are for the most part based on individualized factual situations based on a collection of social experiences involving work-related events.  The collection of ESI on social networks, such as Facebook, has become a treasured library of information that can be utilized to defend or prosecute these matters.

Accessing and effectively using ESI becomes a rather complicated and hazardous experience for claims personnel as well as lawyers. The use of social networking in a workers' compensation claims environment should be approached with a cautious methodology.

Even though workers' compensation  claims are legislatively intended to be summary, remedial, and expeditious in adjudication, the players are bound by both the informality of the proceeding and the structured formality of evidentiary rules. Most state workers' compensation systems, while allowing some informality, are still guided by the Federal Rules of Civil Procedure (FRCP) and the Rules of Professional Conduct (RPC).

The harvesting of data — by "friending" the injured worker or those in his or her social network, or becoming a "fan" of the employer — is akin to surveillance. ESI gathered from such sites as Facebook can be utilized to demonstrate the state of mind of the parties, and can be obtained directly from statements made by a party, agent of the employer, or through user relationships, ie. co-workers, company management personnel, or friends.

The data could be personal status updates; photos or videos; or on- or off-the-job activities or events. Locating, archiving, and preserving this data must comply with legal considerations and are vulnerable activities for employers. In a recent survey, it has been reported that courts have sanctioned organizations for illegal activity, and that 49 percent of the sanctions deal with the failure to properly preserve ESI evidence.

Investigators hired to gather the information, whether hired by employers, insurance carriers, or attorneys are required to maintain a chain of custody over the data and act in a fashion that would prevent spoliation of the evidence. It can be assumed, by the terms of service of site operators, that there is no reasonable expectation of privacy for the evidence gathered.

Attorneys directing investigations must act in a responsible fashion so that violations of the law are not committed in obtaining the information, and that the attorney's actions are in compliance with the rules of professional responsibility. An attorney cannot direct an agent or client to violate a law or commit a fraudulent, deceitful, dishonest act. Investigators cannot be instructed to illegally "friend" an individual.

Likewise, clients cannot be instructed to illegally manipulate ESI. The lawyer may advise their clients about the lack of privacy of the social networking site and the need for removal of any data that would not be appropriate to post. The RPC prohibits an attorney from advising their client to obstruct justice by destroying, or in this case removing, ESI.

In proceeding with workers' compensation litigation where there are disputes as to fact, legal representatives must use formal discovery requests including production requests, interrogatories, and subpoenas. The attorneys should request that parties to the claim, and those who are to be called as potential witnesses, be required to provide their identification information that they utilize for social networking sites.

Data sets should be identified through the use of discovery including depositions. All ESI that could be potentially admissible as evidence at the time of trial should be secured and preserved as early in the action as possible. In some instances, social networking evidence has even resulted in workers' compensation fraud convictions.

In the formality of a judicial setting, the court becomes the ultimate gatekeeper in determining what information is fairly gathered, relevant, and admissible for trial. The judges are required to have the parties authenticate the information being offered at the time of the hearing and to filter out hearsay evidence, which may include only gossip and rumor, ie. statements made by third parties.

Social networking, and the ESI that they gather, is a new form of communication that must be considered in the processing of disputed workers' compensation claims. As Facebook and other sites expand their applications to link the world into a more social and personal Internet experience, those involved in the handling of claims and cases must be properly prepared to access this vast library of individualized information for use in an evidential setting.

Ultimately the workers' compensation hearing officers will have the final task in determining how friendly these sites will become to judiciary process.

MORE ON SOCIAL MEDIA INVESTIGATIONS:

• Using Social Media in Your Claims Investigations 
• 15 Questions to Ask Claimants About Social Media Usage
• Featured Fraud: Facebook Status Set to 'Sentenced' 
• Social Media and Investigations: Tips from the Field — Podcast -
• Speaking Of: Social Media Intelligence 
• Paris Hilton Arrest Provides Lesson For SIU Investigators