[May 13, 2013] A federal judge in New Jersey recently sanctioned a plaintiff for deleting his Facebook account, which purportedly contained photographs and other information that contradicted his personal injury claims against the defendants.
The plaintiff had agreed, as part of discovery, to provide the contents of his Facebook account. Instead, he deleted it.
As a sanction, the court agreed to provide a spoliation instruction at the trial, instructing the jury that it may draw an adverse inference from the plaintiff’s destruction of the evidence.
The decision serves as a reminder that employers should seek discovery of from the Facebook and other social media accounts of plaintiffs in employment litigation. (Ask for it!)
It is also a reminder to businesses that they must ensure that their managers and other decision-makers do not destroy such evidence, if it exists. (Preserve it!)
[May 2, 2013] As described in a recent Boston Business Journal (“BBJ”) article, Schwartz Hannum has volunteered, through the Boston Bar Association, to provide pro bono legal services to businesses affected by the Boston Marathon bombings. Such businesses may face difficulty obtaining insurance coverage for property damage and business interruption, and may need to provide accommodations for injured employees. Another issue flagged by Will Hannum in the BBJ article is whether workers’ compensation insurance will cover injured workers.
Emphasizing that this crisis presents unique challenges, Will explained to the BBJ: “This is a situation in which [business owners and employees] are going to work together and get through it together.” The goal for employers is to do so in a way “that will be in the employers’ best interest at the same time as the employees’ best interest.”
As reported in the ABA Journal, Will has also explained that businesses could “get themselves in trouble” if they take actions perceived as unfair, such as firing employees who are too upset to work.
Schwartz Hannum looks forward to assisting Back Bay businesses with practical, creative, and thoughtful solutions to these challenging issues.
[April 26, 2013] A recent New York Times article serves as a reminder that whistleblower claims seem likely to be one of the fastest growing types of employment law claims in coming years. They present employers with the same type of challenge that retaliation claims present: a coincidental chronology — (alleged?) complaint followed by termination — that will often get the case to the jury, regardless of the underlying merits; and where the jury will then decide the case based on factors (if not facts) known only to them. As a result, employers are well-advised to empower human resources and counsel to develop policies and training to mitigate their whistleblower risks.
[March 29, 2013] The Firm recently published an article detailing various employer social media policies that the National Labor Relations Board (“NLRB”) is likely to view as violating employees’ rights under federal labor law. (Click here to read the article.) Employers should be aware that a social media policy can be found unlawful even if the employer is not unionized, and even if no employee has ever been disciplined for violating the policy.
The New York Times recently featured a news story on this same topic. The upshot of the NLRB’s recent activity in this area is that employers should review their social media policies very carefully, in consultation with labor counsel, and revise them as necessary to minimize the risk of NLRB challenges.
[November 8, 2012] William E. Hannum III was featured in Dawn Lomer’s November i-Sight blog article on “How To Draw the Line Between Tough Management and Harassment.” Click here to read Will’s recommendations for determining the difference between harsh management practices and harassing behavior, and view some examples of negative impacts of risky management styles.