Hunton Employment & Labor Perspectives

Recently a woman found out just how serious social media can be when she lost her benefits as a result of photos she had uploaded to her Facebook page.  She posted photos on her Facebook page that showed her having fun on vacation and also enjoying a “Chippendales” show.  The problem was that she was on extended sick leave from her job at the time, purportedly because she was suffering from depression.  Her employer’s insurance company saw the photos and discontinued her benefit payments, concluding that she was not unable to work due to depression.  She argued her doctor recommended that she try to have fun to help her forget about her problems.

Facebook also played a prominent role in another recent legal case, Leduc v. Roman, 2009 CanLII 6838 (ON S.C.).  A plaintiff injured in a car accident alleged that he was suffering severe loss of enjoyment of life.  The defendant argued that photos and text on the plaintiff’s Facebook page might tell a different story.  An appellate court ruled that the material should have been produced in discovery, even if privacy issues might be implicated.

Individuals who post information on Facebook and other social media are not the only ones who face risks.  Currently the Equal Employment Opportunity Commission (EEOC) is considering the role that social media might play in actions under the Genetic Information Nondiscrimination Act (GINA), which became effective in November 2009.  GINA prohibits employers from making decisions based on genetic information, which includes information showing genetic predisposition to medical problems such as family medical history.  Because individuals might post such information on social media sites, employers easily could obtain such information.

Many employers search for information about job applicants and employees on social media sites.  Currently there are no prohibitions against doing so.  The prevailing rationale is that information made available to the public is equally available to employers.  Although GINA does not prohibit employers from obtaining genetic information through lawful internet searches, it does prohibit employers from making adverse employment decisions based on such information.  Once an employer obtains such information, from whatever source, the employee or the EEOC could argue that an adverse decision was motivated by such information. 

While individuals should exercise caution in the type of information they post about themselves on social media sites, employers also should beware of trying to obtain too much information about their employees and applicants.  A possible rationale for a legal challenge would be that employers would not seek such information if they did not intend to use it.  Thus, social media will continue to pose risks for employees and employers alike.