Social networking, workers comp & the law

September 22nd, 2010 by Julie Ferguson

In the past, we’ve featured assorted news items about how employers and insurers are turning to social networks to monitor employees for potential fraud. In fact, just last week, we learned about how the New York State Insurance Department’s Fraud Bureau recently cracked a case as a result of a Facebook posting. But social media and how it intersects with workers compensation is all still pretty uncharted territory.
Given this, we were delighted to learn of a recent paper specifically dealing with this area of law: Social Networking and Workers’ Compensation Law at the Crossroads, authored by Gregory M. Duhl of William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held, P.A. It’s a substantial document – 75 pages, to be precise, that looks at the use of social networking evidence in workers’ compensation litigation. It’s scheduled to be published in the Pace Law Review, but you can download a free copy of the report at the above link. We’d encourage you to run, not walk, to get your copy – it’s interesting, well written, and thoroughly annotated, and you don’t need to be an attorney to find it valuable.
We think that the remarks which the authors make at the conclusion of their paper do an excellent job of explaining the importance of both the issues at hand and the value of this work in particular, so we are taking the liberty of reproducing them:

“The lawyers, judges, insurance companies, and parties within workers’ compensation systems will increasingly confront the discovery, privacy, professional responsibility, and evidentiary issues that arise at the crossroads of workers’ compensation law and social networking. In the absence of case law and ethics opinions that discuss these exact issues, this article starts with the rules that govern workers’ compensation cases, and discusses how they might apply to lawyers gathering, producing, and introducing evidence from social networking sites. But this article is only a starting point. As workers’ compensation systems are built on efficiency, flexibility, and discretion, workers’ compensation is an ideal area of law for lawyers and judges to experiment with how to address some of the unique challenges and opportunities that social networking poses in litigation.

While there is a lack of legal authority on these issues, that should not cloud the reality that many employees are using social networking in their daily lives. One thing of which we are certain is that lawyers who practice in the workers’ compensation field need to be able to navigate around social networking sites such as Facebook, LinkedIn, and MySpace, and know how they work. Social networking is no longer a new technology, and ignorance should not be an excuse to the applicability of evidence from social networking sites in litigation.”

In the spirit of those remarks, we’d like to leave you with this video clip which gives a good overview of how social media is changing the landscape. Startling as it is, it’s already almost a year out of date.

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