Think before you post: It could affect your case


By Professor Kurt Olson
Special to THELAW.TV

There was a time when people's desire to be heard could only be sated by publishing a story or book, or finding some sort of public stage and audience. Today, social media gives everyone an audience, and many of us rush to share our thoughts and lives with a potentially huge group of "followers." We make our private lives public, on Facebook, Twitter, and other social media outlets.

Unfortunately, most remain blissfully ignorant of the potentially devastating consequences of carelessly crafted posts. Consequences of these posts can include criminal prosecution and catastrophes in civil suits. One of my own recent cases very clearly illustrates this point.

My client (let's refer to her as Jane) seemed to have a strong claim against an employer for constructive wrongful termination; Jane resigned her position in response to abusive practices in the workplace. There are a variety of laws that protect workers from having to endure such environments, and these laws include worker's compensation statutes.

The abusive practices in this case became so severe that Jane's mental health was at risk, and perhaps her mental health (or lack thereof) helps explain her later behavior. The claims in this case include:

  • The employer severely criticizing Jane for failing to appropriately discipline employees under her control.
  • The employer repeatedly calling Jane at home when she was taking legitimate sick days to tell her to stop being a slacker.
  • The employer writing scathing performance reviews which sharply conflicted with others' reviews of Jane's performance.

These incidents forced Jane to bring a civil action against the company claiming that it had caused severe physical and mental problems: generalized anxiety disorder, post-traumatic stress, and depression.

Jane filed her claim with the Worker's Compensation Board. After each side filed various documents with the board, a hearing was scheduled. Herself a convincing witness, Jane also had two other witnesses who either had suffered some of the same abusive practices or could testify about Jane's positive performance and the employer's questionable practices. Following our presentation, I was confident that our case was strong enough to merit compensation for Jane.

Jane's case started to head south almost immediately when she was called as the first witness.

The opposing lawyer's goals were to discredit her testimony, to show that the company had not caused her injuries, and that her injuries were not as severe as she had claimed. He succeeded in tilting the hearing officer's scales in the company's favor because Jane had forgotten to tell me about some rather damning evidence.

After some preliminary questions, the company's lawyer pulled out a Facebook posting in which Jane had regaled her "friends" with her weekend frolic at a Caribbean resort with one of our two witnesses. The tale recounted how the two had attended a wine tasting, cavorted on the beach with some bronzed Adonises, and generally had a swell time – all while Jane was supposedly suffering from the afflictions she mentioned in her suit. I felt like I'd been kicked in the gut; even though I had a chance to ask Jane whether her therapist had recommended such a trip to help her deal with her anxiety (he did), the damage was done.

But the harm done by careless public communications to Jane's case was far from over. She had alleged that she could never return to work at company headquarters, but she would accept reassignment elsewhere. Upon further questioning by the company's lawyer, Jane repeated what she had said in her complaint. Then, the company's lawyer pulled out another document: an email from Jane to a manager in which she suggested that she would accept an assignment at some other location or at headquarters under a different supervisor. After doubling over from the kick to the gut, I now felt the sting of a vicious uppercut to my chin, sending me reeling into the corner of the hearing room.

When it was over, the hearing officer informed us that she would send out her opinion within 30 days. Over dinner, I gave Jane the bad news: I had seen the hearing officer frown only twice during the process: when she heard about the Facebook posting and when she heard about the e-mail. I told Jane the likelihood of a ruling in our favor was not good, but I didn't have the heart to tell her that she should have told me she was a social media chatterbox and liked to share her thoughts in unencrypted emails.

In today's social media dominated environment, all the world can really be your stage. Just remember that your performance on that stage, whether posting, texting, or emailing, can live forever. And in the world of court cases, that's not always a good thing.