This quarterly edition of Employment Law Corner addresses the potential legal issues and liabilities that may arise when employers utilize social networking websites either as an online day-to-day business tool or while conducting online monitoring of applicants and current employees.  In the last several years, there has been an explosion in the popularity of online social networking websites.  Websites such as Facebook, MySpace, Twitter, and other online blog websites can present a tremendous amount of opportunity for employers, but at the same time present a series of legal pitfalls.  This article will discuss what legal issues employers must consider with social networking websites in the workplace.

There are several issues that must be considered prior to engaging in such monitoring or adopting the use of social networking websites as a day-to-day business tool. Specifically, employers must understand the potential issues of discrimination, privacy, privilege, and confidentiality.   

Discrimination Concerns

A discrimination claim may arise when an employer uses social networking sites to pre-screen candidates.  Employers have increasingly used social networking websites to provide insight into whether a candidate will fit into a company's cultural makeup along with other extensive justifications for screening applicants through such monitoring.  Employers must understand, however, that in pre-screening an applicant's Facebook or MySpace page, an employer might become aware of a candidate's race, religion, gender, sexual preference, age, nationality, marital status or disability.  Consequently, through searching these sites, employers might obtain information about applicants they otherwise would not have known by simply interviewing applicants.  As a result, such information learned may result in improper hiring decisions based on information that they cannot legally use in making hiring decisions.  This pre-screening issue potentially implicates a number of federal employment statutes including the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act (ADEA), and the Uniform Services Employment and Reemployment Rights Act (USERRA).  If employers utilize information such as age, disability, race, sex, etc., as the basis for denying employment to applicants, liabilities from the above listed statutes could result. 

Privacy Concerns

Another issue that arises with social networking in the workplace is privacy.  It should be noted that employers must be aware that monitoring through use of social networking websites may result in invading employees' privacy.  Generally, an employer may infringe upon an employee's privacy rights if the employee's interest in keeping the social networking information private outweighs the employer's interests in obtaining the information and the employer nevertheless requires that the employee provide such information.  A key component of this issue is that an employee must take reasonable efforts to keep the information private. 

Hence, if an employee has not restricted access to the information, i.e., allows the worldwide web viewing public to view such information, then the employee did not take the reasonable steps to keep the information private from an employer.  However, if an employee has a personal webpage that is accessible only to those who enter a proper user name and password and/or other processes in recovering the information, then the employee has taken reasonable steps to keep the information private.  In this latter example, the employee would have a privacy interest in the information posted on his or her social networking webpage.  Employers should know that if they choose to access information that employees or applicants have posted in a private manner on such websites, there could be potential liability if employers seek to obtain such information without permission from the employee or applicant.

Privilege and Confidentiality Concerns

Finally, some courts have found that employers violate state professional conduct ethics rules by retaining and using e-mails protected under the attorney-client privilege doctrine.  At times, information posted via social networking sites can be obtained through the employee's e-mails that were sent through the employee's work computer.  This information may have also been sent to an employee's attorney and later accessed by the employer.  While this is an issue of first impression in the Colorado courts, this question will likely turn on whether the employee took adequate steps to protect the confidentiality of her privileged communications between herself and her attorney.  Thus, while this area of confidentiality is unclear, the lesson for employers is to have a properly-drafted e-mail policy that is disseminated to employees and updated as appropriate that clearly identifies the loss of such confidential privileges. 

Social Networking Website Policy

It is further recommended that the adoption of a social networking policy should also be developed to avoid the potential legal issues discussed above.  In choosing to adopt such  a policy, the employer should consider the goals of this type of policy which include protecting a company's:  (1) trade secrets, confidential, proprietary and privileged information; (2) reputation; and (3) privacy of its employees.  Furthermore, an effective social networking policy should establish guidelines regarding whether employees can use social networking websites during working hours, and if so, under what circumstances. 

Conclusion

Due to the ever-increasing popularity of social networking websites, employers must embrace that day-to-day use of such websites can provide useful resources.  With that said, employers should consider and recognize the potential liabilities that may arise when attempting to take advantage of these resources.

In today's litigation, more and more cases involving head injuries include additional subjective claims from claimants and plaintiffs of cognitive dysfunction and impairment including symptoms such as word finding problems, confusion, and emotional instability.  To address these limitations and alleged injuries, an independent medical examination and report from a licensed neuropsychologist are becoming increasingly more useful. 

Concussion syndromes, along with psychological effects of closed head injuries, are often impossible to verify with objective radiological studies such as MRIs or CT scans.  Neuropsychologists, however, run a scientific battery of tests, the results of which can be convincingly explained with supporting evidence to a jury or a judge.

The dilemma in utilizing a neuropsychologist arises when the parties request the use of, or access to, the raw testing data compiled during the independent medical examination.  Neuropsychologists frequently refuse to disclose the raw test data based on ethical objections. The American Psychological Association Ethical Principles and Code of Conduct §9.04 states, "Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test..."  This refusal to disclose the raw test data creates a confrontation between the legal rules of disclosures in both workers' compensation and the Colorado Rules of Civil Procedure.

The purpose of discovery is to eliminate surprise or ambush at trial and to give both parties' access to information that can help them to better value the case.  A report from a neuropsychologist, along with the underlying data can confirm the presence of cognitive dysfunction and significantly increase the value of a claim.  Alternatively, a report showing no evidence of cognitive impairment or injury coupled with the absence of an objective injury can thwart a party's attempt to inflate their damages.

Psychologists and neuropsychologists will also argue that the test questions and responses include copyrighted material which could endanger the integrity of the tests.  This argument is much like the SAT or LSAT sponsors' concerns that dissemination of testing materials could allow future test subjects to artificially manipulate the outcome and invalidate the test scores.

One of the effects this issue has on litigation is increased costs and expenses.  Neuropsychological testing usually requires 1 to 2 full days of testing and additional time for the neuropsychologist to evaluate the results and draft a report which can be expensive.  Their refusal to release test data, however, can also create the need for additional discovery motions to the court which can increase litigation expenses and attorney's fees in addressing the issue.

Several steps can be taken once a neuropsychological evaluation is contemplated to avoid unnecessary motions practice and expense.  The neuropsychologist's position on disclosures should be addressed prior to their retention to determine whether the issue will arise at all.  Stipulated protective orders in which the other party agrees to release the information only to other qualified neuropsychologists or psychologists have been used in several cases to eliminate the conflict.

Ultimately, in Colorado, neuropsychologists can be ordered by the courts to produce the information given the court's discretion and the broad language supporting disclosure in the Colorado rules.  Parties should be aware, however, that in some states legislative statutes have been passed creating an exception to the judicial rules of discovery foreclosing the ability of a party to obtain this type of information from psychologists.  A careful analysis of the jurisdiction and the necessity to your case of the underlying test data should be considered early on and the costs associated with obtaining such materials should be included in any discussion regarding the retention and use of a neuropsychologist or psychologist expert.