There is no polite way to put it. Ask any employment lawyer and he or she will tell you: People do stupid things at work. While carefully balancing on the safe side of RPC 1.6, employment lawyers always seem to have a number of jaw-dropping stories about what employees have been caught doing in the workplace.
The same opinion is often shared by lawyers outside the employment field. A day in the life of any defense litigator is often spent trying to deal with the reality that a client’s employees often become the greatest liability when a lawsuit arises.
Now insert the latest fad: social media websites.
The digital age is, once again, changing life on the job and may be making attorneys even more nervous about rogue, or just less than cautious, employees. Take, for instance, Twitter.com. What are you doing in 140 characters or less? That is the principal aim of the social networking site, Twitter. Users post “tweets” answering this simple question. But if certain sectors of the workforce tweeted about what they were doing, it might break the law and expose the employer to liability.
Picture a nurse who tweets from her iPhone during rounds. HIPAA keeps private certain information: conversations a doctor has with a nurse about a patient’s treatment and information in medical records. The simple tweet “talking to doctor about patient in room 202 with sexually transmitted disease” poses a whole new risk to a hospital that knows its employees are using Twitter, but does not remind them of the risks.
Attorneys tweeting can also cause substantial problems. RPC 1.6 requires confidentiality of client communications. Most attorneys are conscious about this rule, but after going to a seminar on how Twitter could lead to business in this down economy, it may be troublesome to find an attorney who starts answering the Twitter principle and ends up divulging too much information.
Another concern can be the employee merely relaying what he or she is observing in the workplace. An employee ignoring a spill in a retail establishment can easily end up on a co-worker’s mobile phone Twitter update — “Spill on Aisle 9 call, but I’m on break.” Or a co-worker’s daily rant about a fellow employee may become the evidence for a hostile-work-environment claim.
Lawyers with clients employing workers with statutory privacy requirements (doctors, accountants, therapists, other attorneys, etc.) may want to have a conversation with their clients about how to talk to their employees about using care when tweeting in the workplace. Some entities have even gone so far — understandably — as to issue decrees preventing on-the-job tweeting.
Just last month, the U.S. Marine Corps blocked a number of social media sites. According to PC World, one of the stated reasons for this action was to prevent private and sensitive information from being inadvertently disclosed by an employee’s carelessness. The publication also reports that a survey this year shows that 8 percent of the 220 companies surveyed had fired an employee for on-the-job activity on social media sites.
Relaying 140 characters is not the only problem clients may face from their social media savvy employees. Several years ago, video surveillance in the workplace was an important way in which technology was changing the law. The National Labor Relations Board found that union employers needed to bargain with employees before installing video cameras to catch misbehavior on the job. Other cases began detailing the benefits and risks for non-union employers who decide to install video cameras.
The landscape is quickly becoming more complex as digital camera and camcorder manufacturers are selling and marketing their products by stating the ease for the average person to post videos on YouTube, which is geared to allowing individuals to upload and share videos with others. On its website, YouTube states its point of pride: “As more people capture special moments on video, YouTube is empowering them to become the broadcasters of tomorrow.”
When the broadcasters of tomorrow are a client’s employees, there are a host of possible problems. Just ask the lawyers for Domino’s Pizza, who faced a quasi-disaster earlier this year when two employees filmed a video on their phone for YouTube. In the video, the employees stuffed cheese up their noses and then placed the cheese on a pizza. This led to the CEO apologizing on YouTube, the authorities charging the employees and a world of bad publicity. It is unclear whether the pizza chain escaped a citation for health-code violations.
Before this headline news, there were firings at Kentucky Fried Chicken and Burger King once employers caught wind of employee videos showing members of the workforce taking provocative baths in the employers’ sinks.
There are also concerns when a client’s customers have video recording devices. On YouTube currently you can find a video of a Comcast employee who fell asleep on a customer’s couch or a DC metro train operator texting. The sheer number of individuals with the ability to take videos and upload them onto YouTube is opening up the public workplace and showing it to millions of viewers.
More than 5 million viewers have watched a video shot by an airport employee of an irate customer flailing and screaming after missing her flight. More than 21,000 people have posted comments on the video, many of which are derogatory. An employee filming on the job may open a company up to liability for defamation suits, violations of Washington’s prohibition on audio recordings without the consent of all parties and other privacy law issues.
It is undeniable: Those stupid things that employees do in the workplace are becoming more and more public. Social media are allowing a window directly into the office. It is unhealthy to fear the new, but lawyers should be prepared for the possibility that the evidence that will help or hurt one’s case is on social media websites.
Both plaintiff and defense counsel should consider expanding the definition of “document” or “communication” in interrogatories. There may be a wealth of information within individual social media accounts. Counsel should try search engines for the opposing party to learn whether they have these accounts, although at no point should an attorney try to message or befriend an opposing party, as this may be thought of as a communication outside the presence of counsel.
Does your client or do your client’s employees use YouTube? Do they have a Facebook or MySpace account? Do they use Twitter? When litigation begins, you may need to know the answers to these questions.
Jamila Johnson is a litigation associate in the Seattle office of Schwabe, Williamson & Wyatt, a multiservice Northwest regional law firm with offices in Seattle, Vancouver, Portland and Bend. She can be contacted at 206-407-1555 or at .
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