Employers have used MySpace to screen potential job candidates. Employers have fired employees for something posted on the employee’s Facebook and MySpace pages. Even the incoming White House administration is requiring applicants to disclose any potentially embarrassing content on social networking sites. So we’ve seen the role Facebook and MySpace have played in hiring and firing decisions. But there is a new use for employers–using Facebook and MySpace in litigation. Specifically, litigation against former or current employees.
Dan Schwartz at the CT Employment Law Blog pointed out this new use as described in an article at Law.com entitled “Are Social Networking Sites Discoverable?” The article concludes that the information found on a plaintiff’s MySpace or Facebook page is likely discoverable during litigation. From the article:
Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant’s private life and state of mind. The converse thus becomes the moral for litigation counsel — this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.
Dan raises a great point–what if the employee’s website contains comments that would disprove his claim? For example, if an employee is claiming national-origin harassment and his co-workers said that there was an environment of friendly, though inappropriate (but not unwelcome), banter between the young males in the department. The employee claims that he never engaged in this banter but, instead, he was subject to frequent comments so severe that it made his workplace a hostile environment. So there’s the employee’s word and the word of his co-workers. Not much to go on as far as a defense goes.
But what if the employee’s MySpace page was peppered with inappropriate comments of his own? And what if the comments were exactly the ones identified by the co-workers?
It’s not difficult to imagine this potentially case-changing scenario. It looks like MySpace and Facebook are here to stay as a tool for employers to learn potentially crucial information about employees–old and new.