Is your employee vacationing somewhere sunny while on sick leave? Or is she, perhaps, enjoying a jog through the park while off on disability with a broken leg? You found out about these events because of posts made on social media sites, but can you use the information as evidence in an investigation?
Social Media Investigations
Findings as Evidence
Wall posts, status updates, photos, check-ins and tweets have all been used as evidence in workplace investigations. In the Zimmerman v. Weis Markets Inc. case, Zimmerman was an employee of a subcontractor of Weis Markets and was seeking damages for an injury that occurred at work. Zimmerman claimed that an accident seriously and permanently impaired his health. Weis Markets reviewed the public portions of Zimmerman’s Facebook and MySpace pages, and felt that there might be some additional information to refute the damage claims in the private sections of his profile.
On the public portions of his profile, the company found photos of Zimmerman engaging in some of his favorite activities after the accident took place at work. They knew the photos were from after the accident because his scar from the accident was visible in the pictures.
The court decided that Zimmerman had to hand over his passwords and login information to the counsel for Weis Markets so that they could access the private sections of his Facebook and MySpace accounts. The opinion released by the court said:
Zimmerman voluntarily posted all of the pictures and information on his Facebook and MySpace sites to share with other users of these social network sites, and he cannot now claim he possesses any reasonable expectation of privacy to prevent Weis Markets from access to such information.
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By definition, a social networking site is the interactive sharing of your personal life with others; the recipients are not limited in what they do with such knowledge. With the initiation of litigation to seek a monetary award based upon limitations or harm to one’s person, any relevant, non-privileged information about one’s life that is shared with others and can be gleaned by defendants from the internet is fair game in today’s society.
What Employers Need to Consider
You won’t always be granted permission to obtain login information and passwords from an employee under investigation. Be aware of the Patterson v. Turner Construction Company to remind employers that their requests must be “made in the right kind of case, at the right stage of the case, and have the right scope.”
Employers also have to be careful about how they access information posted on an employee’s social media profile. Attorneys and investigators cannot misrepresent who they are in order to get access to join their opposition’s private social media network. For example, you cannot create an account under an alias, “friend” the employee under investigation and then expect to use that information to support your case – the evidence won’t be admissible.
Five Tips for Effective Social Media Investigation
1. Google And Bing Are Your Friends
Never underestimate the power of your favorite search engine. Many people don’t realize how much information is available about almost everyone via the internet. Simply searching your subjects name might uncover surprising results.
Another easy search engine technique is reverse image search. Sometimes an image search reveals social media accounts, online dating profiles, employers, personal blogs, and a wealth of other resources. Use critical thinking when evaluating the results as some phishers, scammers, and catfishers steal people’s pictures to use to build false profiles.
2. Look Your Subject Up On Social Media
Social media offers hints to a subject’s location, lifestyle, and interests. According to Pew Research, 48% of social media users report finding each channels privacy settings difficult or confusing. As a result, many leave some or all of their information public. A public social media profile is one of the first visits for any investigator.
Even when the subject uses privacy settings, there may still be publicly posted information on major channels like Facebook and Instagram. Facebook’s graph search may uncover unexpected gems as many people allow the public to see photographs they are tagged in. Insurance investigators, divorce attorneys, potential employers, and debt collectors have all uncovered valuable information and evidence of a subject’s lifestyle and character simply through casual, candid photographs posted on Facebook, Snapchat, or Instagram.
Savvy investigators also look at less personal social media accounts such as Pinterest. Even though users are less likely to post telling, personal details, these channels can indicate location and interests.
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3. Look at Your Subject’s Friends’ Accounts
Many people allow friends of their friends to see even private details. Also, sometimes friends with public profiles may comment on photographs, location check-ins, or status updates from friends with private accounts.
A recent study uncovered that nearly 50% of all social media users accept friend requests from strangers. Be aware that many social networks forbid false profiles.
4. Take Screenshots To Preserve The Evidence
Since social media posts are ephemeral, your subject may remove embarrassing or incriminating content. Savvy investigators keep a record of these posts including a screenshot. Be sure to track important details about the posts you uncover and find a way to preserve and archive any valuable information.
5. Try Social Listening Tools
Social listening tools help businesses with marketing and customer service purposes. Some of these same social listening tools have investigative applications. It would be prohibitively time-consuming to constantly search Google, Bing, and each social network for new updates on your subject. However, you can automate some of this using social listening tools.